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美国最高法院通识读本 [:1702690389]
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美国最高法院通识读本 Chapter 8The Court and the world
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During the first decades after independence, some legislators and other leaders of the new United States were eager to insulate the country’s legal system against corruption from the old regimes of Europe. Between 1799 and 1810 the legislatures of New Jersey, Kentucky, and Pennsylvania passed statutes forbidding the state courts from citing any cases decided by English courts after July 4, 1776. In private correspondence, Thomas Jefferson supported the effort to rid American courts of English law.
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But even then, the American attitude toward foreign law was ambivalent, hardly universally hostile. The first paragraph of the Declaration of Independence, after all, referred to “a decent respect for the opinions of mankind.” The Federalist Papers contain references to more than five hundred foreign place-names. Early Supreme Court opinions included abundant references to foreign law, and accounts of Napoleon’s legal reforms in France were widely circulated. Much later, twentieth-century Americans watched with pride as the nations of Europe followed the U.S. model in embracing the idea of a constitutional court, empowered to invalidate legislation deemed incompatible with the country’s basic charter. As these courts spread their wings in new post–World War II or post–Cold War democracies, it was common for their judges to invoke U.S. Supreme Court precedents.
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But despite widespread respect for the Supreme Court, no country has simply imported the American experience wholesale. While the Framers of the U.S. Constitution had little in the way of practical experience to guide them, the architects of the new constitutional systems could evaluate the strengths and weaknesses of the American experience. The choices they made are illuminating.
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For example, no country in the world has chosen to bestow life tenure on its judges. A single nonrenewable term is the most common model. The fifteen members of the Italian Constitutional Court serve for nine years, whereas the sixteen justices of the Federal Constitutional Court in Germany serve for twelve. South Africa’s Constitutional Court, which was created by the postapartheid constitution in 1994 and quickly established itself in the forefront of constitutional courts, has twelve-year terms for its eleven justices.
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While a complete inventory of the judicial tenure of the world’s constitutional courts is beyond the scope of this book, these examples demonstrate that other countries have seen little to emulate in the U.S. model of life tenure. Not coincidentally, the confirmation battles that mark the U.S. judicial selection process, even for lower court judges, are largely absent. This is undoubtedly due in large measure to differences in the rules for selecting and confirming judges. In Germany, for example, confirmation requires a two-thirds majority, a rule that effectively mandates political compromise at the beginning of the process. But the scheduled turnover created by term limits also contributes to the lowered temperature by removing the prospect that a political party temporarily in power can exercise long-lasting control over the judiciary.
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Another difference is that European courts, at least, tend to observe a norm of unanimity. Separate opinions are disfavored and, in some countries, even officially forbidden. When judges are permitted to note a dissenting view, they are often required to do so anonymously. Oral arguments are rare. Taken as a whole, rules like these make it less likely that judges will take on the role of public—or polarizing—personalities.
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Comparisons that focus on structure are inherently incomplete, because both substantive law and the domestic political context in which it evolves obviously differ across borders. These variations, along with the fact that the jurisprudence of some foreign courts has moved in a more liberal direction even as U.S. courts have become more conservative, accounts for the recent controversy in the United States over the propriety of federal judges citing nonU.S. judicial rulings in their own opinions. Citing foreign law, both Justice Scalia and Chief Justice Roberts have complained, is like looking out over a crowd and picking out one’s friends—selecting those opinions most compatible with a desired result.
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Critics have focused on three Supreme Court opinions decided between 2002 and 2005. All three moved the law in a progressive direction, with the majority opinions citing the views of foreign courts or lawmakers. These foreign sources were clearly not invoked as determinative of the meaning of the U.S. Constitution, nor could they have been. But mere mention of the foreign materials provoked anger by framing the question of how to interpret the Constitution in a global context of evolving views on human dignity. Two of the decisions concerned capital punishment. The Court held in Atkins v. Virginia, in 2002, that the Eighth Amendment’s prohibition of cruel and unusual punishment barred the execution of mentally retarded offenders. The majority mentioned a brief on the defendant’s behalf by the European Union. Three years later, in Roper v. Simmons, the Court barred the execution of those convicted of having committed a capital crime before the age of eighteen. In this case, the majority cited European amicus briefs as well as the United Nations Convention on the Rights of the Child, a treaty that the United States has not ratified.
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In between those two decisions, the Court ruled in Lawrence v. Texas (2003) that a Texas law criminalizing homosexual sodomy was unconstitutional. That decision overturned a seventeenyear-old precedent (Bowers v. Hardwick, 1986) and marked a constitutional turning point for gay rights. The majority opinion cited the English law that decriminalized sodomy in 1967 as well as a similar 1981 ruling by the European Court of Human Rights.
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11. People wait through the night to pay respects to Justice Thurgood Marshall, lying in repose in the Court’s Great Hall, January 27, 1993.
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These decisions sparked a strong negative response from conservatives in Congress. In 2004, after the Atkins and Lawrence rulings, the chairman of the House Judiciary Committee, F. James Sensenbrenner, a Republican from Wisconsin, addressed the members of the Judicial Conference, gathered for their spring meeting at the Supreme Court. “Inappropriate judicial adherence to foreign laws or legal tribunals threatens American sovereignty, unsettles the separation of powers carefully crafted by our Founders, and threatens to undermine the legitimacy of the American judicial process,” the congressman told Chief Justice Rehnquist and the other judges. He warned that Congress would soon examine the issue. Other congressional Republicans raised the threat of impeachment, warning that they regarded citing foreign law as incompatible with the reference in Article III “good behavior.”
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This controversy did not appear to change any minds on the Supreme Court. Justices who supported acknowledging foreign sources of law continued to do so, while those who opposed the practice continued to criticize it. Talk of impeachment faded as congressional attention shifted to other targets. It is uncertain whether the public as a whole even paid attention to a debate that for at least some months captivated legal and political circles in Washington.
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What is clear, however, is that even though most people know little about the Supreme Court and may never hold a Supreme Court opinion in their hands, the Court occupies a place in the public imagination. The large crowd that gathered for the laying of the cornerstone in 1932 came to celebrate the Court’s long-delayed arrival at a home of its own. The people who waited outside the Court through a cold winter night in 1993 to pass by Justice Thurgood Marshall’s casket were also, in their way, celebrating: the life of a man who had inspired the Court as a lawyer and served it as a justice. Although other nations choose features of the Court to reject as well as to emulate, as they tailor their constitutional courts to their own needs, it is still the Supreme Court of the United States that looms over the world’s inner landscape. The Framers expected as much. In a landmark opinion of the early Court (Martin v. Hunter’s Lessee, 1816), Justice Joseph Story described the Supreme Court’s power to decide cases “in the correct adjudication of which foreign nations are deeply interested.” They still are.
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美国最高法院通识读本 [:1702690390]
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美国最高法院通识读本 Appendix 1United States Constitution, Article Ⅲ
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Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
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Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;—to all cases affecting ambassadors, other public ministers and consuls;—to all cases of admiralty and maritime jurisdiction;—to controversies to which the United States shall be a party;—to controversies between two or more states;—between a state and citizens of another state;—between citizens of different states;—between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
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In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
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The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
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Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
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The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
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