First US Supreme Court judge to visit SA stops over at UCT

Justice Ruth Bader Ginsburg spoke at UCT during her recent visit, at the invitation of alumnus Judge Albie Sachs. This is a reprint of an article that appeared in Legal Times.

By Tony Mauro, Legal Times, March 15, 2006

Supreme Court Justice Ruth Bader Ginsburg says she and now-retired colleague Sandra Day O'Connor were the targets of an Internet death threat last year because of their citation of foreign law in decisions. In a speech last month at the Constitutional Court of South Africa, Ginsburg suggested the threat was prompted by bills introduced by Republicans in Congress that would prohibit federal courts from referring to foreign laws or rulings in interpreting the US Constitution.

"Although I doubt the current measures will garner sufficient votes to pass, it is disquieting that they have attracted sizeable support," said Ginsburg. "And one not-so-small concern - they fuel the irrational fringe." She then revealed the online threat.

Ginsburg, who turns 73 today, delivered the speech on February 7, without much apparent media coverage, in South Africa. The text was posted without notice on the Supreme Court's website on March 2. Ginsburg said in her speech that the office of the Marshal of the Court, who is in charge of security for the justices, alerted her to a February 28, 2005, web "chat" posting that began: "Okay commandoes, here is your first patriotic assignment." After mentioning that Ginsburg and O'Connor invoke foreign laws and rulings, the posting continued, "This is a huge threat to our Republic and constitutional freedom – If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week."

Ginsburg did not indicate where on the web the message appeared or if any investigation ensued. "Nearly a year has passed since that posting," Ginsburg told her audience. "Justice O'Connor, though to my great sorrow retired just last week from the Court's bench, remains alive and well. As for me, you can judge for yourself."

O'Connor, in remarks first delivered last fall but repeated last week at Georgetown University Law Centre, has also criticised Republican attacks on the federal judiciary. The debate over citation of foreign laws has intensified in recent years as foreign norms and international treaties have played cameo roles in some of the Court's most controversial liberal rulings. In a concurrence in the Grutter v Bollinger decision in 2003, for example, Ginsburg cited an international treaty in asserting that the Court's support for limited affirmative action programmes "accords with the international understanding" of such measures.

Ginsburg chose South Africa to discuss the issue at length, in part because that country's 1996 constitution states that when interpreting its bill of rights, courts "must consider international law; and may consider foreign law". She offered similar remarks at a meeting of the American Society of International Law in April 2005, but did not reveal the Internet threat during that talk. International and multinational charters and courts "today play a prominent part in our world," Ginsburg said.

"The US 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." Citing criticisms of the practice by Justice Antonin Scalia and 7th Circuit appeals Judge Richard Posner, Ginsburg cautioned that "Foreign opinions are not authoritative; they set no binding precedent for the US judge. But they can add to the store of knowledge relevant to the solution of trying questions. Yes, we should approach foreign legal materials with sensitivity to our differences, deficiencies, and imperfect understanding, but imperfection, I believe, should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey."

Ginsburg also noted that "Judges in the United States are free to consult all manner of commentary - restatements, treatises, what law professors or even law students write copiously in law reviews, for example. If we can consult those writings, why not the analysis of a question similar to the one we confront contained 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?" Ginsburg also spoke at several South African universities during her six-day trip. According to the US Embassy in South Africa, she was accompanied by her husband, Martin, a Georgetown law professor, who also spoke to South African university audiences about his speciality, tax law.