Very, Very Wrong... I wrote a dissent — and that's the way it works... [the court's decision was procedural] and so we'll see what happens in that ar… - Stephen Breyer

It is possible that the critics of cross-referencing worry that the practice of citing foreign decisions will lead American judges to decide cases not through legal analysis but through “nose-counting” — that is, tallying up the number of countries on each side.19 There is a further worry, not entirely unfounded, that foreign opinions are subject to misunderstanding, because American judges are unlikely to grasp the foreign contexts in which those decisions arise.20 Moreover, even if the decisions of foreign courts do not bind American judges, they can influence them — indeed, that is the very aim of the cross-referencing practice. Finally, those who see judges throughout the world as belonging to the same social caste — one sharing generally “leftish” political views, and perhaps including state court judges, law professors, and lawyers generally — may not believe that this influence is salutary. Wielded by those whom Americans have virtually no voice in choosing, this influence, it is feared, could easily get out of hand, undermining basic American democratic values.21

be “a familiar judicial exercise.”46 My colleagues believed the courts should not avoid the question by invoking the “political question” doctrine.47 They consequently sent the case back to the lower court for a decision on the merits.48 Though alone, I saw the case differently. “In the Middle East,” I wrote, “administrative matters can have implications that extend far beyond the purely administrative.”49 The secretary of state had argued that requiring her to stamp the word Israel on a passport would represent an “official decision by the United States to begin to treat Jerusalem as a city” under Israeli sovereignty.50 She maintained that upholding the statute would have significant foreign policy implications (a conclusion that others denied). Because of our inability to know the answer to this kind of dispute, I concluded that the merits of the case raised a political question, which the other two branches should resolve between themselves.51 What matters for our purposes, however, is that the other members of the Court disagreed with me. They thought that, even there, the doctrine did not prevent the Court from reviewing the merits of this foreign policy-related question. The upshot is that neither the classical view of Cicero nor the “political question” doctrine prevents today’s Court from reaching, and deciding the merits of, many questions in which security and civil liberties collide. But there are other doctrines, embodied in other cases, that have had much the same effect.

Ironically, the only two “relevan[t]” metrics that the Court does identify are “how and why” a gun control regulation “burden[s the] right to armed self-defense.” In other words, the Court believes that the most relevant metrics of comparison are a regulation’s means (how) and ends (why) — even as it rejects the utility of means-end scrutiny.