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It is possible that the critics of cross-referencing worry that the practice of citing foreign decisions will lead American judges to decide cases no… - 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
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About Stephen Breyer
Stephen Breyer (born August 15, 1938) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1994 to 2022. He was nominated by President Bill Clinton, and replaced retiring justice Harry Blackmun. Upon retirement, he was replaced by one of his former clerks, Ketanji Brown Jackson. Breyer was associated with the liberal wing of the Court.
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Stephen Gerald Breyer
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"The Court has a special responsibility to ensure that the Constitution works in practice. While education, including the transmission of our civic values from one generation to the next, must play the major role in maintaining public confidence in the Court's decisions, the Court too must help maintain public acceptance of its own legitimacy. It can do this best by helping ensure that the Constitution remains "workable" in a broad sense of the term. Specifically, it can and should interpret the Constitution in a way that works for the people of today."
The Court’s insistence that judges and lawyers rely nearly exclusively on history to interpret the Second Amendment thus raises a host of troubling questions. Consider, for example, the following. Do lower courts have the research resources necessary to conduct exhaustive historical analyses in every Second Amendment case? What historical regulations and decisions qualify as representative analogues to modern laws? How will judges determine which historians have the better view of close historical questions? Will the meaning of the Second Amendment change if or when new historical evidence becomes available? And, most importantly, will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?
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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.
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