Scalia criticizes courts citing foreign trends Scalia: Foreign law isn't ours

At Houston gala, he criticizes courts that cite countries' trends for rulings

U.S. Supreme Court Justice Antonin Scalia prepares to speak to judges and lawyers Monday night in Houston. He was also promoting a book he co-wrote with Dallas-based author Bryan Garner. U.S. Supreme Court Justice Antonin Scalia prepares to speak to judges and lawyers Monday night in Houston. He was also promoting a book he co-wrote with Dallas-based author Bryan Garner. Photo: NICK De La TORRE, CHRONICLE Photo: NICK De La TORRE, CHRONICLE Image 1 of / 1 Caption Close Scalia criticizes courts citing foreign trends 1 / 1 Back to Gallery

Judges who use foreign laws to interpret the U.S. Constitution are rewriting it rather than respecting its founders, U.S. Supreme Court Justice Antonin Scalia told a roomful of judges and top lawyers in Houston on Monday night.

"I fear the courts' use of foreign law in interpreting the Constitution will continue at an accelerated pace," the 72-year-old conservative jurist said.

Scalia spoke at a $150-a-head steak and potatoes dinner sponsored by the local chapter of the Federal Bar Association and held at the Hyatt Regency Houston downtown. Before talking for about 30 minutes, the jurist autographed copies of a book he co-authored.

Scalia promised to be noncontroversial but frequently used the example of Lawrence v. Texas, a Houston case in which he disagreed with the majority that struck down Texas' anti-sodomy law. Scalia complained that foreign laws were cited in that case.

Scalia was typically evangelical in his advocacy of "originalism," or strictly adhering to what the Constitutional authors meant more than 200 years ago. He criticized those who see the Constitution as an evolving or "living document" that adapts to the times.

The 1986 Reagan appointee said he'll only become a believer in those who cite foreign law if they do it more universally, like in abortion cases where more countries prohibit it than don't. "The court has ignored foreign law in its abortion cases," he said.

Scalia said the founders of this country did not want us to emulate Europe.

He told the 50 tables of lawyers that when judges use foreign laws or even U.S. legislative history, they are straying from their true purpose. He said judges do it to expand their own power because they wrongly consider "the views of all segments of mankind" and to make it appear they have something to rely upon.

Scalia said some leeway can be found even sticking only with the Constitutional text.

"It doesn't mean you can't twist the Constitution," he said lightly. "You just do it the good old-fashioned way: You just lie about it."

The self-proclaimed social conservative, known for both his combativeness and his humor, Scalia spoke in Houston in part to promote his book Making Your Case: The Art of Persuading Judges. It's written with Bryan Garner, a Dallas-based legal writing author.

The book's acknowledgments include a thanks to Houston-based 5th U.S. Circuit Court of Appeals Chief Judge Edith Jones, who introduced Scalia on Monday night.

In response to a question from Jones, Scalia said he disagrees with his alma mater Harvard Law School's decision to copy Yale and scrap grades in favor of a pass/fail system. "I want to know who's best in the class. I don't want to know just who went to Yale," he said.

In response to another question, the jurist said he thinks law schools have gotten away from teaching students to be lawyers, and some academics have even developed a contempt for the practice.

He argued legal academics should spend more time with legal practitioners.

mary.flood@chron.com