Justices Stephen Breyer and Antonin Scalia had a videotaped discussion about whether foreign cases should be cited in opinions that rule on U.S Constitutional law. (The discussion was taped by C-Span and can be seen on the C-Span site, as detailed below.)
The discussion was held at the American University School of Law. The justices, along with moderator N.Y.U. law professor Norman Dorsen, sat in easy chairs. (Dorsen was the founding president of the U.S. Association of Constitutional Law.) It wasn't a debate in which each went to a lectern and stated his position. Instead, Professor Dorsen asked some questions, which the justices took turns answering – sometimes. Sometimes Dorsen's questions and questions from the audience were never answered. As the transcript reflects, for instance, after failing to answer one question, Scalia, to the laughter of the audience, admitted, "[T]hat answers none of your questions, but that's what I wanted to say."
More interesting to me than the topic of the discussion was seeing at least the public persona of the justices. Both of them showed a sense of humor. However, Scalia seemed like a Mr. Spock (remember Star Trek?), but a Spock with a sense of humor. Breyer seemed like a warm-hearted Fred Rogers (remember Mr. Rogers?), but a Mr. Rogers with a knowledge of and a love for the law.
What was also interesting was that Justice Scalia allowed C-SPAN to tape the session. A while back, after reporters recorded one of his speeches, U.S. Marshals required the reporters to erase the recordings. Scalia later apologized, and, even later, the Justice Department, representing the U.S. Marshals Service, said the reporters and their employers were each entitled to $1,000 in damages and reasonable attorneys' fees that had been sought by the plaintiff media organizations.
You can see the C-Span video of the discussion, which lasts a little over ninety minutes. Go to www.c-span.org and click on "Justices Scalia & Breyer Discussion on Foreign Courts' Impact."
As far as the citation issue, Justice Breyer was in favor of allowing foreign case law to be cited, not as authoritative or binding, but for whatever wisdom the foreign cases might have. It would be valuable for "opening your eyes." ("What I see in doing is this is what I call opening your eyes, opening your eyes to things that are going on elsewhere, use it for what it's worth.")
Justice Scalia didn't think foreign cases should be cited unless the cases were from England and preceded the ratification of the Constitution:
Scalia did agree, however, that references were pertinent in cases such as those involving the interpretation of treaties or contracts. The cases, except for those English cases, just should not be cited in interpreting the United States Constitution.
The transcript of the discussion:
http://domino.american.edu/AU/media/mediarel.nsf/1D265343BDC2189785256B810071F238/1F2F7DC4757FD01E85256F890068E6E0?OpenDocument
You can read about the foreign law issue: http://kennethandersonlawofwar.blogspot.com/2005/01/whats-big-deal-about-foreign-law-in-us_02.html
Thanks to a January 11 entry of Goldstein & Howe, P.C. in its SCOTUSblog:
http://www.goldsteinhowe.com/blog/index.cfm which led me to the Kenneth Anderson blog.
Justice Scalia's apology:
http://www.nylawyer.com/news/04/04/041304l.html
Justice Department settlement:
http://www.washingtonpost.com/wp-dyn/articles/A58394-2004Sep28.html
A detailed article about the U.S. Marshals requiring the erasing of the recordings:
http://www.silha.umn.edu/Spring%2004/ScaliaTapes.pdf