Constitution? What Constitution?

Judge Janice Law wrote a brief recap of the use of foreign law by the Supreme Court in adjudicating cases. I think she gets the conservative consensus pretty well (author's italics):

Scalia, who has the timing of a professional comic, spoofed his colleagues. To paraphrase: They think we [conservatives] are country bumpkins who just fell off a turnip truck. "Au contraire!" he deadpanned in perfect French, joining his audience in raucous laughter.

Of course, the real surprise is not that the activist justices are resorting to foreign laws in their reasoning, but that they haven't resorted to such documents as the "The Charter of the United Federation of Planets". After all, practically every country in the world has aired "Star Trek" by now, a fact which must be telling us something. And one would think that liberals could get a lot of mileage by grounding their foreign policy views on the prime directive.

In reality, resorting to foreign law to decide domestic cases is really an act of desperation by the liberal faction on the Supreme Court. Activist Supreme Court justices seem reluctant to dictate legislation overtly, instead preferring to arrive at their preferred outcomes for cases through the usual process of adjudication. But sometimes the decision that these justices would prefer to adopt just cannot be logically reached through any kind of orthodox legal reasoning. Since something, no matter how ridiculous, must be used as a cover story, judicial activism has always been associated with a certain intentionally sloppy reasoning. The most notorius example is probably the "emanations and penumbras" of the Roe v. Wade decision.

The use of foreign laws in adjudicating domestic court cases is thus a symptom that the usual techniques of justifying an activist ruling (see "The Tempting of America" by Judge Bork, for example) are beginning to fail.