The Nine [109]
With some force, Scalia argued that the Court’s grazing among foreign laws was really just an excuse to shape the law “to the justices’ own notion of how the world ought to be.” In concluding he warned, “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”
The response to this pointed debate over the influence of foreign law showed how much Kennedy had strayed from the values of the contemporary Republican Party. Like O’Connor, Kennedy had come of age at a time when the GOP stood for low taxes and limited government, but he increasingly saw social issues define his party. As Kennedy soon learned, hostility to international law—and international institutions like the United Nations—had also become a central tenet of the GOP. In his earnest, even naive way, Kennedy believed his recognition of foreign law amounted to a corollary to Bush’s evangelism for spreading freedom around the world. “If we are asking the rest of the world to adopt our idea of freedom, it does seem to me that there may be some mutuality there, that other nations and other peoples can define and interpret freedom in a way that’s at least instructive to us,” he once said.
In truth, all Kennedy was doing was showing how out of touch he was with the modern Republican Party. After Roper, fifty-four conservatives in the House of Representatives sponsored a resolution criticizing the use of foreign sources by the Supreme Court, and Representative Steve King, a Republican from Iowa, conducted an investigation of the justices’ foreign trips, based on the disclosure forms that they are required to file. “Between 1998 and 2003, the justices took a total of ninety-three foreign trips,” King said. “And the implication is that there are at least a couple of justices, chiefly Kennedy and Breyer, who are more enamored of the ‘enlightenment’ of the world than they are bound by our own Constitution.”
Every year, one or two justices testified before Congress in support of the Court’s annual budget request, and Kennedy often took on the assignment. In his testimony after Roper, he mentioned in passing that he used the Internet for legal research. This prompted Tom DeLay, the House majority leader, to tell an interviewer from Fox News Radio, “We’ve got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States. That’s just outrageous, and, not only that, he said in session that he does his own research on the Internet. That is just incredibly outrageous.”(As DeLay apparently did not know, virtually all legal research, in U.S. as well as foreign law, is now conducted on the Internet.)
A few weeks later, near the end of the Court’s term, Kennedy gave a pointed retort to DeLay. For a reunion of Chief Justice Rehnquist’s law clerks, he made a brief video during which he was taped sitting at his computer. He said that he was doing a little research. He signed off by saying good-bye in several languages.
The video allowed Kennedy to shrug off DeLay’s criticism with a cheery wink. But there was no mistaking the fact that the Bush presidency was poisoning the atmosphere around the Court, if not inside it. Ever since his apostasy on abortion in Casey, Kennedy had been anathema to the conservative movement, but his citations to foreign law tapped into a deep nativism on the right as well. The backlash against him was fierce. For a time, Souter had been the principal Republican target, but Kennedy’s authorship of high-profile opinions had made him the public symbol of conservative betrayal.
At a conservative conference in Washington shortly after Roper, Phyllis Schlafly, the veteran antifeminist leader, said Kennedy’s decision was “a good ground for impeachment.” Michael P. Farris, chairman of the Home School Legal Defense Association, said Kennedy “should be the poster boy for impeachment,” for citing international law. “If our congressmen and senators do not have