Justice Ruth Bader Ginsburg has been called many things: a feminist icon, a trailblazer, a brilliant legal mind, a hero and so on. She fought passionately for what she believed in, breaking down barriers and shattering glass ceilings. Her impact went well beyond the United States borders, as she always made it clear that she believed in the Supreme Court’s use of foreign and international law materials to aid in interpreting U.S. law.
In Justice Ginsburg’s speech “A decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication,Justice Ginsburg said that “The U.S. judicial system will be . . . poorer . . . if we do not both share our experience with, and learn from, legal systems with values and a commitment to democracy similar to our own.”[1] She also said that the reason a U.S. court could refer to a foreign and international court decision is because “it bears repetition, not as controlling authorities, but for their indication, in Judge Wald’s words, of “common denominators of basic fairness governing relationships between the governors and the governed.”[2] In this speech, Justice Ginsburg noted all of other commentary that Judges are free to consult; “restatements, Treatises, what law professors or even law students write copiously in law reviews, and, in the internet age, any number of legal blogs.”[3] She found that, “If we can consult those sources, why not the analysis of a question similar to the one we confront contained, for example, in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights?”[4]
In 2009, Justice Ginsburg spoke at the Mortiz College of Law at Ohio State University where she said, “I frankly don’t understand all the brouhaha lately from Congress and even some of my colleagues about referring to foreign law.”[5] Justice Ginsburg went on to ask, “Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article from a professor?” and suggested that this “hostility to foreign law references is ‘a passing phase.’”[6]
Not only did Justice Ginsburg discuss the importance of using foreign and international law in constitutional adjudication in her speeches, there is also evidence of her using foreign and international law in Supreme Court decisions. For example, in 2003 Justice Ginsburg joined the majority opinion written by Justice Kennedy in the case of Lawrence v. Texas. In this decision, Justice Kennedy writes about how the European Court of Human rights considered a case with parallels to Bowersand the case at issue.[7] Justice Kennedy discusses an adult male residing in Northern Ireland who desired to engage in consensual homosexual conduct but was forbidden by the laws in Northern Ireland.[8] The Court held that “the laws proscribing the conduct were invalid under the European Convention on Human Rights” and that the decision is “at odds with the premise in Bowersthat the claim put forward was insubstantial in our Western civilization.”[9] Not only was this opinion a landmark decision for LGBTQ individuals, but it also proved to be an important decision in regard to the incorporation of international law into the U.S. jurisprudence.
Additionally, in 2005, Justice Ginsburg joined the majority opinion written by Justice Kennedy in Roper v. Simmons. There, Justice Kennedy held that “it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty. . .”[10] Justice Kennedy also found that “the opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”[11] While the case was not decided on an international law basis, Justice Kennedy (as well as Justice Ginsburg who joined the majority opinion) made it clear that international law could (and should) be used as offering persuasive insight.
Furthermore, Justice Ginsburg wrote a concurring opinion in Grutter v. Bollingerwhere she discussed international law. She found that “The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994. . . endorses ‘special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.’”[12] Justice Ginsburg reasoned that the majority’s “observation that race-conscious programs ‘must have a logical end point,’ accords with the international understanding of the office of affirmative action.”[13] More specifically, Justice Ginsburg noted the consistency between “the majority’s decision and the principles embraced in international treaties.”[14] This concurrence was powerful for many reasons, one of those reasons being her application of international and comparative law to the interpretation of U.S. law.
Similarly, in Negusie v. Holder, Justice Ginsburg joined the majority opinion which recognized the role of comparative sources in interpreting the “persecution of others” bar to asylum.[15] The court cites cases from Canada, the United Kingdom, Australia, and New Zealand.[16] A few years later, in the 2015 case Glossip v. Gross,Justice Ginsburg joined Justice Breyer’s dissent regarding the death penalty. Justice Breyer writes that “many nations – indeed, 95 of the 193 members of the United nations—have formally abolished the death penalty and an additional 42 have abolished it in practice.”[17] These are just a few decisions in which Justice Ginsburg either directly or indirectly spoke to the importance of international law.
There is no question that Justice Ginsburg has been a powerful advocate in legitimatizing the role of foreign and international law materials in deciphering U.S. law. Referencing the Declaration of Independence, Justice Ginsburg has stated that “the U. S. Supreme Court will continue to accord “a decent Respect to the Opinions of [Human]kind” as a matter of comity and in a spirit of humility.”[18] She has also quoted Justice O’Connor, who once said that “other legal systems continue to innovate, to experiment, and to find . . . solutions to the new legal problems that arise each day, [solutions] from which we can learn and benefit.”[19] Justice Ginsburg understood the importance of looking at international law in an increasingly global world, and she helped to open U.S. law to a broader view – one that looks beyond our borders.
[1] Ruth B. Ginsburg, “A Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication, 1 FIU L. Rev. 27, 28 (2006).
[2] Id.
[3] Id.at 34.
[4] Id. at 35.
[5] Barbara Peck, Ginsburg Dazzles During Visit to Moritz, The Ohio State University Law School Magazine(2009).
[6] Id.
[7] Lawrence v. Texas, 539 US 558, 560 (2003).
[8] Id.
[9] Id.
[10] Roper v. Simmons,543 U.S. 551, 578 (2005).
[11] Id.
[12] Grutter v. Bollinger, 539 U.S. 306, 344 (2003).
[13] Deborah E. Anker, Grutter v. Bollinger: Justice Ruth Bader Ginsburg’s Legitimization of the Role of Comparative and International Law in U.S. Jurisprudence, in Essays in Honor of Justice Ruth Bader Ginsburg (Feb. 4, 2013) (on file with the Harvard Law School Library);see also Grutter v. Bollinger, 539 U.S. 306 (2003).
[14] Id.
[15] Negusie v. Holder, 555 U.S. 511, 515 (2009).
[16] Id.; seee.g., Canada v. Asghedom, [2001] F.C.T. 972, ¶ 28 (Can.Fed.Ct.); Gurung v. Secretary of State for Home Dept., [2002] UKIAT 4870, ¶¶ 108–110 (U.K.Immigr.App.Trib.); SRYYY v. Minister for Immigration & Multicultural & Indigenous Affairs, [2005] 147 F.C.R. 1, ¶¶ 126–128 (Austl.Fed.Ct.); Refugee Appeal No. 2142/94, pp. 12–14 (N.Z. Refugee Status App. Auth., Mar. 20, 1997).
[17] Glossip v. Gross, 576, U.S. 863, 944 (2015).
[18] Ruth B. Ginsburg, supra note 1.
[19] Id.
New York International Law Review 