More on Citations to Foreign Law:
Professor Michael Kelly has responded to my post on the fact that Justice Scalia and Justice Thomas are opposed to discussing foreign law in the course of interpreting the U.S. Constitution. As I noted in my earlier post, Professor Kelly's initial essay suggested that Justice Thomas doesn't cite foreign law because he lacks intellectual curiosity, and that Justice Scalia refuses to do so because he is afraid that citing foreign law will make it hard for him to defend originalism.

  Professor Kelly offers a more complete explanation in his new post. Here is his explanation of why he thinks lack of intellectual curiosity explains Justice Thomas's failure to cite foreign law:
  The intellectually curious have an innate hunger for more knowledge, are rarely satisfied with one solution to a problem and are drawn to compare - as Justices Stevens, Kennedy, O'Connor, Breyer and Ginsberg do when they cite to decisions of foreign courts. They also often tend to see the world in shades of gray rather than in starkly black and white terms - which admittedly can be a handicap if they are policymakers. Even Rehnquist demonstrated this natural compunction in Glucksberg when he noted the experience of The Netherlands as he was rejecting a right to euthenasia.
 I have not had as many conversations with Justice Thomas as Prof. Kerr has to refute his claim of first-hand knowledge to the contrary. All I have is Thomas' writing to form my opinion, which I have done. And his resistance to citation of foreign court judgements appears not be based on anything other than not wanting to deal with it.
  I'm not sure I follow the reasoning here. By what theory does judicial citation serve as an indicator of "intellectual curiosity" and "innate hunger for more knowledge"? Citing foreign law is easy; you just pick up a brief and cut and paste some citations. As far I can discern, that neither requires nor correlates with "innate hunger for more knowledge." And why is comparative international practice the relevant metric for intellectual curiosity? Why not use discussions of American legal history instead? If you pick legal history as the guide, then you will conclude that the more originalist Justices are the only intellectually curious Justices on the Court. More generally, what about Justice Thomas's opinions leads Professor Kelly to conclude that he in particular lacks intellectual curiosity? For the second post in a row, he does not say.

  In his explanation for Justice Scalia's refusal to cite foreign law, Professor Kelly acknowledges that Justice Scalia "has a philosophical reason for resistance." Justice Scalia does not cite foreign law because in his view it is irrelevant. Professor Kelly continues:
  [That] is why I posed the question of what he may be afraid of (again, I don’t know the answer), although I suspect it could be that originalism is not used widely by foreign courts. If it were, perhaps he would have occasion to cite them. However, his bigger fear (again guessing here) may be that a slippery slope exists. If judges begin citing foreign law as non-mandatory, how long will it be before they begin using it to decide cases?
  Again, I'm not sure I follow. Justice Scalia sees foreign law as irrelevant because foreign decisions do not even claim to be interpretaions of the U.S. Constitution. The foreign decisions are interpretations of foreign law, not U.S. law. Why would we think it odd — or, in this case, a sign of fear — not to discuss something that doesn't even claim to be relevant to the case? It seems to me that the normal judicial practice is to not cite that which is deemed irrelevant; I'm not sure why that doesn't fully explain Justice Scalia's practices. Justice Scalia doesn't discuss the Bible in his opinions on constitutional law, either. Should we conclude that he is afraid of religion?

  In any event, I hope I'm not being unfair in my response. I have enabled comments just in case; I am confident that VC readers will set me straight. As always — you knew this was coming, didn't you? — civil and respectful comments only.

  UPDATE: I have deleted two comments already because they were neither civil nor respectful. Sorry to police things like that, but I don't open up comments so commenters can hurl insults.