Peter often brags (deservedly) about the notable accomplishments of Ashbrook Scholars. Here is another post that he can add to his bragging list. Deborah O’Malley, an alumni of the Ashbrook Scholars program has joined the ranks of the legal center at Heritage. She just published a timely op-ed discussing the Supreme Court’s unseemly attraction to international law, and warning that this trend could get worse if advocates of "transnational" jurisprudence like Obama advisor and Yale Dean Harold Koh were to join the court.
The defense offered by Justice Breyer for his invocation of international law is fairly weak, and O’Malley calls him on it:
Justice Stephen Breyer insisted that the "enormous value...of trying to learn from the similar experience of others" justifies giving weight to foreign laws. It’s particularly valuable, he says, when addressing human rights issues. Why? Because "you’re asking a human question, and the Americans are human -- and so is everybody else."
It is rare that one sees the "I’m a Pepper; he’s a Pepper; wouldn’t you like to be a Pepper, too?" theory of constitutional adjudication. Yet this approach appeals not only to Justice Breyer, but also to Justice Ruth Bader Ginsburg, who admonishes that we "can join hands with others" by paying homage to international law.