4) Justice Sotomayor and the Application of Foreign Law

By: Elizabeth Frederick, Pace International Law Review, Managing Editor

Justice Sonia Sotomayor, the first Hispanic person to serve as a Supreme Court Justice and the third woman to do so, was sworn in as an Associate Justice of the U.S. Supreme Court on August 8, 2009.  Justice Sotomayor will take Associate Justice David Souter’s seat on the court.

In the months leading up to her appointment to the Supreme Court, members of the confirmation hearing frequently questioned Justice Sotomayor about her views on applying foreign law in domestic cases.  While Justice Sotomayor has indicated that she will not use foreign law to interpret the Constitution, she has also indicated that foreign precedent could be used as a “source of ideas . . . informing our own understanding of our constitutional rights.”  Justice Sotomayor has also publicly agreed with Justice Ginsberg’s sentiment that ignoring foreign case law will cause the United States to lose influence in the world.

A number of news sources have decried Justice Sotomayor’s comments on the application of foreign law as arbitrary and even dangerous.  However, during the confirmation hearing, Justice Sotomayor clarified the extent to which foreign law should be applied, such as in the following treaty provisions.  Moreover, Justice Sotomayor indicated that application of foreign law as binding precedent would be improper in interpreting the Constitution, and only under limited circumstances will foreign law be binding under other U.S. laws.

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