Use of foreign precedents in SCOTUS decisions

In the comments to this post of Ann Althouse’s on Justice Scalia’s reaction to a non-binding resolution making its way through the House against the use of foreign law in legal decisions, a commenter very kindly directs us to an excellent article that lays out the very good reasons that foreign legal decisions should have little role in American judicial decisions:

Part I argues that non‐ornamental use of foreign decisions undermines the separation of powers and violates the constitutional rules against delegation of federal authority to bodies outside the control of the national government. Part II argues that use of foreign decisions undermines the limited theory of judicial review, as set out in Marbury v. Madison.  Chief Justice Marshall justified the federal courts’ power to ignore enacted laws that were inconsistent with the Constitution on the ground that such statutes fell outside the delegation of authority by the people to the government, as expressed in the Constitution.  Relying on decisions that interpret a wholly different document runs counter to the notion that judicial review derives from the Court’s duty to enforce the Constitution. Part III considers the relevance of the Constitution’s Supremacy Clause and Law of Nations Clause to the Court’s emerging use of foreign law. Part IV questions the Court’s use of precedents that derive almost exclusively from Europe. We will suggest that Europe does not present the ideal model of constitutionalism for the United States to follow and that in fact deviation between the United States and Europe may significantly enhance global welfare.

It’s not simply ignorance or xenophobia that militates against the inclination to use foreign precedents.

I don’t know why some justices have cited foreign law in their opinions.  It may be the desire to parade their learning.  It may be, as the authors of the article put it, “ornamentation”.   It may be a sincere wish for or belief in world government.  As I’ve written before of the United Nations government requires consensus and there simply isn’t enough consensus around the world right now to make that desireable.  Genuine world government would inevitably be tyranny to some—in all probability to us since we’re in very many ways the outlier as far as government goes.

Cherry-picking of foreign law to find those laws that support the position you prefer, as described in the article, doesn’t bespeak reasoned consideration so much as zealous advocacy.  Is our legal system more adversarial than it was, say, 50 years ago?  I seem to recall something about attorneys being “officers of the court” and having a first duty to the law itself.  Is that out-of-date?  I’m beginning to think that there should be different tracks in legal education and career:  one for advocates and one for judges.

Meanwhile, while kibbitzing is irritating regardless of whether it’s on bridge, golf, or judicial decision-making, it’s well within Congress’s powers.