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Supreme Court Justice Antonin Scalia on Thursday repeated his strong opposition to invoking foreign law in Supreme Court constitutional decisions — but he said Congress should not legislate against the practice. “I don’t think it’s any of your business,” Scalia said before a lunch meeting of the National Italian American Foundation that included many members of Congress of Italian descent. “I’ll be darned if I think it’s up to Congress to tell us how to rule.” Scalia added, “Let us make our little mistakes, just as we let you make yours.” Scalia’s blunt admonition was a new twist on one of his pet peeves about his colleagues on the Court, namely their occasional citation of foreign or international court rulings in decisions on issues including gay rights, affirmative action and the death penalty for juveniles. As much as Scalia opposes the practice, his loyalty to the Court and its independence apparently led him to speak out against proposed legislation on the subject. The practice has outraged Republicans in Congress, prompting several to introduce legislation that would discourage or forbid it. In 2004, Rep. Tom Feeney, R-Fla., introduced a resolution to express the opposition of Congress to citation of foreign law by federal judges, and in interviews he has suggested that judges who ignore the resolution could be subject to impeachment. In the Senate, Richard Shelby, R-Ala., last year introduced a law that would outright forbid federal judges from relying on “any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.” Asked for comment on Scalia’s remarks, Shelby said in a statement, “I respect Justice Scalia�s views on this issue. However, I continue to believe in the underlying principles of the Constitution Restoration Act.” In an interview, Feeney said, “I love and appreciate Justice Scalia even when I disagree with him.” He added that he agrees with Scalia on the independence of the judicial branch, “but I do believe there is a line over which judges cannot cross.” Relying on foreign law in decisionmaking violates the Supremacy Clause of the Constitution, said Feeney, which means that any judge who does so is violating his or her oath to uphold the Constitution. Feeney added that while the president can veto an act of Congress and the Supreme Court can strike down a law, “the only way Congress can express our outrage is by passing a resolution.” Justice Ruth Bader Ginsburg, one of the unnamed targets of Scalia’s ire and of the pending legislation, said in a speech in March that foreign law or rulings should never be binding precedent, but can “add to the store of knowledge” that informs judges. She also said that the congressional fomentation over the issue has energized “the irrational fringe,” resulting in a death threat she and Justice Sandra Day O’Connor received last year. In his talk Thursday, Scalia said that in his view, constitutional interpretation should be guided only by the original meaning of the Constitution: “What the [highest] court of France says is unconstitutional has nothing to do with me.” Foreign authorities, Scalia said, allow justices to take a selective view, citing nations or courts that support their position while ignoring the contrary view of many other nations. “You have to worry about the use of any judicial technique that is so manipulable,” Scalia said.

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