SUPREME COURT NOTEBOOK: Breyer says debate over foreign law is irrelevant

SUPREME COURT NOTEBOOK: Looking abroad for tips

WASHINGTON — The debate over whether the Supreme Court should look to foreign law when interpreting the Constitution is ultimately irrelevant because justices can read whatever they want when they are formulating their opinions, Justice Stephen Breyer said Wednesday.

Breyer said there are those who complain about the high court potentially looking at what other countries do when they are resolving cases involving U.S. law.

“I say that’s a wonderful political debate. It’s good, but it’s pretty irrelevant because when I do read things, I can read what I want,” Breyer said.

If judges in another country with similar laws have a similar case, a judge should be able to consider how they solved it, Breyer said in remarks at the Johns Hopkins University Paul H. Nitze School of Advanced International Studies.

“If I see something written by a man or a woman who has a job like mine in another country, and who is interpreting a document somewhat like mine and who in fact has a problem in front of the court somewhat like mine, why can’t I read it, see what they’ve done? I might learn something,” Breyer said.

“We understand that this is the American Constitution, but why can’t I read it? There are similar things,” he added. “I do read it, and if I read it, why don’t I just refer to that fact? I know it isn’t binding, so what’s the problem? That’s my view.”

The issue of international law and its usage in American courts came up last year during the Senate consideration of Justice Sonia Sotomayor. Justice Antonin Scalia is one of the leading opponents of using international law and decisions by foreign courts to interpret the Constitution.

“From a legal point of view, I don’t think it’s overwhelmingly important,” Breyer said. “If some people don’t want to read foreign opinions, fine, don’t read them. If you want to, fine. If you want to refer to them, fine.”

Breyer, noting that the most complaints about referring to foreign law came in cases dealing with the death penalty and gay rights, said the complaints may be simple “displacement,” in which people who dislike the result of a case focus their anger on something else.

“Consider the cases in which it came up,” Breyer said. “That’s why I mentioned displacement.”

On tough days at the Supreme Court, a lawyer’s 10 minutes can seem like 10 hours. Solicitor General Elena Kagan had one of those days Wednesday.

Kagan is the Obama administration’s top high court lawyer and is widely considered a leading candidate to be nominated to the court when the next justice retires.

Kagan was defending the view that when a federal prosecutor in one city signs a plea agreement to drop certain charges against a criminal defendant, a federal prosecutor elsewhere may not be bound by the deal.

Chief Justice John Roberts jumped in. “That’s absolutely startling,” he said. “The different U.S. attorneys all work for your boss, right? They work for the attorney general. How can one part of the attorney general agree to something that doesn’t bind the other part of the attorney general?”

Kagan replied, “The United States government is a complicated place and the fact that …”

Roberts shot back, “I take your word for it.”

Later, Kagan tried to turn the tables on Justice Antonin Scalia by posing a question to him.

“Usually we have questions the other way,” Roberts said, exercising his prerogative as chief justice to steer the discussion a bit.

“I apologize,” Kagan said.

Breyer often weaves the court’s most involved, or outlandish, hypothetical situations to get lawyers to focus in on aspects of a case that trouble him. On Wednesday, he spun the tale of the Pussycat Burglar, a kindhearted man whose only sin is his propensity to break into houses.

Breyer was questioning a Justice Department lawyer about giving longer sentences to people who commit certain crimes.

“This is my hypothetical. You have heard of cat burglars. Well, this gentleman is called the Pussycat Burglar and the reason is he never harmed a soul. He only carries soft pillows as weapons. If he sees a child, he gives them ice cream,” Breyer said, appreciative laughter arising in the courtroom.

He continued, “It is absolutely established that this person in breaking into that house at night only wanted to steal a pop gun, and he is the least likely to cause harm in the world.”

Still, Breyer said, when he is convicted of burglary, the law considers it a crime of violence.

Associated Press writer Mark Sherman contributed to this report.