Many tributes have been written about U.S. Supreme Court Justice Ruth Bader Ginsburg both before and after her recent death on September 18, 2020. However, one aspect of her career that has not received as much attention in these tributes is her views on the role of foreign and international law in the U.S. legal system and her contributions to the development of international law.
Early in her career as a lawyer for the American Civil Liberties Union, Ruth Bader Ginsburg referred to international and foreign legal authorities to support her arguments in Reed v. Reed, a case involving gender discrimination. Later as a U.S. Supreme Court justice, Justice Ginsburg regularly gained insights from her interactions with lawyers and judges around the world. She served as chair of the Judicial Advisory Board of the American Society of International Law (ASIL) from 2006 until her death. In that role, she presided over annual meetings of judges from the thirteen federal judicial circuits to share information about international legal issues coming before the federal courts and prepared an annual report of significant international legal matters that had arisen in those courts during the previous year. She also was a regular participant in various law school study abroad programs, such as Loyola of Chicago Law School’s program in Rome Wake Forest Law School’s program in Vienna, and South Texas College of Law’s program in Malta.
In a speech to the Constitutional Court of South Africa in 2006, Justice Ginsburg stated that the value she places on comparative dialogue and on learning from other legal systems builds on the views of the founders of the United States who cared about international opinion. She has pointed out that in the Declaration of Independence, the drafters and signers stated their reasons for separating from Great Britain and forming the new United States of America out of a “decent Respect to the Opinions of Mankind.” Referring to statements of the Founding Fathers and early case law from U.S. courts, she stated, “From the birth of the United States as a nation, foreign and international law influenced legal reasoning and judicial decisionmaking.” Of course, Justice Ginsburg did not contend that U.S. judges should blindly follow foreign judicial opinions or that such opinions were in any way binding on U.S. judges. Rather, she argued that foreign judicial opinions “can add to the store of knowledge relevant to the solution of trying questions.” She advocated that U.S. judges, “learn what we can from the experience and good thinking foreign sources may convey.” She also opined that, “The U.S. judicial system will be the 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.”
In the Supreme Court’s death penalty jurisprudence under the Eighth Amendment, Justice Ginsburg consistently joined other justices in looking to foreign and international sources for help in ascertaining the “evolving standards of decency that mark the progress in a maturing society.” For example, Justice Ginsburg joined the majority in Atkins v. Virginia in holding that the Eighth Amendment prohibits imposition of the death penalty on a mentally disabled offender. The Court stated, “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” Justice Ginsburg and the majority of the Supreme Court continued this theme in Roper v. Simmons, where the Court held unconstitutional the imposition of the death penalty on persons under the age of 18. There, the Court acknowledged “the overwhelming weight of international opinion against the juvenile death penalty” which provided “respected and significant confirmation of [the Court’s] own conclusions.”
Justice Ginsburg also referred to international sources in other areas of law. In her separate opinion in Grutter v. Bollinger upholding the Michigan Law School’s admissions program against an equal protection challenge, Justice Ginsburg cited two international conventions, the 1965 Convention on the Elimination of all Forms of Racial Discrimination and the 1979 Convention on the Elimination of all Forms of Discrimination against Women, in support of her point that it is possible to distinguish between impermissible policies of discrimination or exclusion and permissible policies of inclusion. She stated her view that Michigan’s admissions policy “accords with the international understanding of the [purpose and propriety] of affirmative action.”
Justice Ginsburg also joined the majority opinion in Lawrence v. Texas, striking down a Texas law that criminalized same-sex intimate sexual conduct. That majority opinion emphasized: “The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries,” citing Dudgeon v. United Kingdom, a leading decision from the European Court of Human Rights.
Justice Ginsburg also has advocated for the U.S. Supreme Court to provide “respectful consideration” to the judgments of the International Court of Justice (ICJ) in a series of cases involving consular notification under the Vienna Convention on Consular Relations (VCCR). In those case, all of the Supreme Court justices agreed the ICJ’s opinions were entitled to “respectful consideration.” However, the justices differed as to the meaning and result of that consideration. For example, writing for the majority in Sanchez-Llamas v. Oregon, Chief Justice Roberts stated that the opinion of the ICJ prioritizing the United States’ treaty-based obligation to provide consular notification over state procedural default rules is entitled to “respectful consideration.” However, the majority held that U.S. courts are not bound by decisions of the ICJ and Oregon was not required to suppress evidence against Sanchez-Llamas due to its failure to provide him timely consular notification. Justice Ginsburg concurred in the result, but wrote a separate opinion in which she attempted to distinguish the facts and to reconcile the ICJ’s interpretation of the treaty and a statute to avoid “friction” and “conflict.” In another VCCR case, Medellin v. Texas, Justice Ginsburg joined Justice Breyer’s dissenting opinion arguing that because the United States had consented to the ICJ’s jurisdiction by treaty, U.S. courts were bound by the ICJ’s decision that Texas should review and reconsider its judgment against Medellin when Texas failed to provide the required consular notification.
Justice Ginsburg continued her nuanced approach to the use of international and foreign law in her 2018 majority opinion in the antitrust case, Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. There, Justice Ginsburg wrote: “A federal court should accord respectful consideration to a foreign government’s submission, but is not bound to accord conclusive effect to the foreign government’s statements.”
Justice Ginsburg also contributed to U.S. jurisprudence on international law through her authorship of majority opinions for the U.S. Supreme Court involving international treaties to which the United States is a party. For example, in her most recent pronouncement on U.S. treaty law, Justice Ginsburg wrote that under the Hague Convention on the Civil Aspects of International Child Abduction, a child’s “habitual residence” should be determined by a the totality of the circumstances and, in this case, the shared parental intent was for the daughter to live in Italy. In the earlier case of El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, Justice Ginsburg rejected a suit under New York law attempting to hold an airline liable for psychic injuries unaccompanied by bodily harm, finding that the Warsaw Convention was intended to create a uniform system of liability rules for its member states.
In the area of international intellectual property law, Justice Ginsburg wrote for the majority in upholding Congress’ power to extend the terms of copyrights in Eldred v. Ashcroft. In doing so, Justice Ginsburg pointed out the positive incentives for authors that are created by uniform copyright laws between the United States and the European Union. In Golan v. Holder, Justice Ginsburg again wrote the majority opinion upholding Congress’ power to enact a statute implementing an international trade agreement on copyright law against a constitutional challenge.
There is much to appreciate about Justice Ginsburg’s openness to consulting international and foreign law. In her public speeches on the topic, Justice Ginsburg repeatedly has predicted 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.” While I wholly agree with Justice Ginsburg that the United States can learn from the experiences and insights of other countries, I suspect it will continue to be a slow and intermittent journey. I hope that we will not forget the teachings of the brilliant and notorious RGB as we continue down that path.
