Steven Breyer once said (I’m paraphrasing of course) that in South Africa there is a wall that used to be a wall to a prison and is now a wall to the court house. This is a symbol of a larger truth: that their society has evolved wonderfully, has now a written constitution, and has faced many important issues and done well with them. (For the sake of argument I don’t dispute this.)
Breyer goes on: why should we not read their documents to see if we can learn from them? They are not binding. Why should we not be open to developments and thought in other societies and learn from them?
So you see Breyer is confusing the American people and the American Supreme Court. He is transferring an argument from one to the other as if the Court is somehow a microcosm of the people and every truth in the macrocosmic nation is also true in the microcosmic Court. This is just sloppy thinking.
The Court has no autonomous existence like the people do. The people create the Court to serve them, and the people define the Court’s role by legal means. The people define themselves by moral and pragmatic arguments, then create legal institutions to preserve their political identity and their self-chosen moral character.
The American people have a right, and perhaps an obligation, to learn what is good from any and every source and to inorporate those truths into their government if they so wish, by Constutional means. It does not follow that The American Supreme Court has any such right. The people may look to South Africa if they like; the Court may only look to the people, from whom they extrude. The People may tell the Court not only what to do but how to do it; the Court has NO AUTONOMOUS RIGHT TO THINK OUTSIDE THE CONSTRAINTS THE PEOPLE GIVE IT.
Now, if the American people wanted to say “you be our Court and you use all available sources from which to craft your decisions” then Breyer would be right. But I don’t think the founders intended the Court to do that.
When the Court takes on an autonomous methodology, having lost its fidelity to its charter, then it becomes simply a rival mob, imposing decisions on a large mob, which they may bitterly endure for a time. But little mobs are always wiped out by a larger mob. We need a Court, to avoid all that.