Justice O’Connor’s Remarks Raise Concerns     11/8/2004
By Anne F. Downey, Esq.

Reliance of U.S. courts on international law continues to grow.

News and Comment

A disturbing trend toward reliance on international law can be seen in the decisions of the U.S. Supreme Court, and recent remarks by Justice Sandra Day O’Connor fuel concerns about this trend.

Justice O’Connor, speaking on October 27 at a dedication ceremony for an international law center at Georgetown University in Washington, D.C., hailed this development.

“International law has emerged in ways that affect all courts, here and abroad,” she said. “The reason is globalization. Its importance should not be underestimated.”

She applauded the increased role, saying: “International law, which is the expression of agreement on some basic principles of relations between nations, will be a factor or a force in gaining a greater consensus among all nations. ... It can be and it is a help in our search for a more peaceful world.”

Notions of “greater consensus among nations” and a “more peaceful world” sound so positive. But what exactly will the consensus be?

Justice O’Connor also said: “Acting in accord with international norms may increase the chances for development of broader alliances or at least silent support from other nations.”

The problem is: Who will decide the “norms” we will all be required to follow in this big happy global family? Didn’t our nation fight a Revolutionary War so that we could enjoy freedom from European government?

Taking the argument one step further, Justice O’Connor said: “Because of the scope of the problems we face, understanding international law is no longer just a legal specialty; it is becoming a duty.”

These comments come in the wake of several key U.S. Supreme Court decisions that show an increasing deference to international law.

In the Lawrence v. Texas sodomy case, the Court told the state of Texas it could not enforce a criminal statute enacted by its Legislature. The will of the people of Texas, as expressed through the elected representatives, was made null and void by a court that relied in part on guidance from the European Council for Human Rights and the United Nations.

In the majority opinion, Justice Anthony Kennedy derided an earlier Court opinion by Chief Justice Warren Burger with its “sweeping references to the history of Western civilization and our Judeo-Christian moral and ethical standards.” Instead, Kennedy looked to a decision of the European Court of Human Rights, finding this “[o]f even more importance.”

Something similar happened in Grutter v. Bollinger, a 2003 U.S. Supreme Court affirmative action case. Justice Ruth Bader Ginsburg, in her concurring opinion in which Justice Stephen Breyer joined, approved the Court’s decision on grounds that it “accords with the international understanding of the office of affirmative action.” She cited, among other international legal sources, the U.N. Convention on the Elimination of All Forms of Discrimination Against Women, a treaty which the U.S. Senate has refused to ratify and which CWA strongly opposes.

Justice Ginsburg, in a speech last year to a liberal legal group called the American Constitution Society, stated that our “Lone Ranger mentality is beginning to change,” as judges “are becoming more open to comparative and international law perspectives.”

When the U.S. Supreme Court prefers the guidance of unelected, foreign groups over American democratic processes, “we the people” become “we the subjects of a globalized viewpoint.” This viewpoint is not likely to be based on the Scriptures.

Surely, this trend would not amuse the Founding Fathers. Since when do the U.S. Constitution and laws take on a lesser role?

One reflects back to July 4, 2003, when Justice O’Connor received the Liberty Medal at a ceremony to open Philadelphia’s new museum honoring the U.S. Constitution. There, during the unveiling of a tableau of the signing of the Constitution, a stage frame fell and narrowly missed the Justice, while striking Sen. Arlen Specter in the arm.

We must pray that God will grant mercy and Godly wisdom to all the members of the judiciary and our elected officials.

We must watch the disturbing trend toward reliance upon international law. Concerned Women for America (CWA) will continue to shine the spotlight on the workings of the judiciary, so that “we the people” can cry out for our voices to be heard.

Anne Downey is a Christian attorney who practices law with her husband in New York. She is a member of the Christian Legal Society, an Alliance Defense Fund “ally,” and is volunteering her services to CWA’s Legal Studies Department.

Printer Friendly Version