Webcast Archive and Transcript of Justices Scalia and Breyer's 1/13/05 discussion at American University
If you haven't viewed the webcast, or read the transcript, I highly recommend checking it out. It's great fun to watch the two best minds on the current Court having a casual chat about the use of international legal precedent in american constitutional law adjudication. During the conversation, they both agreed that the use of international precedent is analogous to the citation of legislative history to support legal arguments. So, needless to say, Breyer thinks it's OK, but Scalia does not " use foreign law in the interpretation of the United States Constitution." Although Scalia mentioned one exception to the use of foreign law as precedent:
"Old English law, because phrases like 'due process,' the 'right of confrontation' and things of that sort were all taken from English law. So the reality is I use foreign law more than anybody on the Court. But it's all old English law."
In any event, Professor Kenneth Anderson notes on his blog the ease with which the two justices discussed complex legal issues. Well, they ain't Supreme Court Justices for nothin'.