“Conservatives, Often Wary of Foreign Law, Embrace It in Census Case”

Adam Liptak NYT Sidebar column:

Two years ago, at his confirmation hearings, Justice Neil M. Gorsuch said that what happens abroad should not influence American judges in constitutional cases.

“We have our own tradition and our own history,” he said, “and I do not know why we would look to the experience of other countries rather than to our own.”

But last week, during arguments over whether the Trump administration may add a question on citizenship to the 2020 census, Justice Gorsuch did not hesitate to consider what he called “the evidence of practice around the world.”

“Virtually every English-speaking country and a great many others besides ask this question in their censuses,” he said.

Justice Brett M. Kavanaugh has also been skeptical about the use of foreign and international law by American judges in at least some kinds of cases. In 2010, when he was an appeals court judge, he wrote in a concurring opinion about a Guantánamo detainee that “international-law norms are not domestic U.S. law.”

But he was curious about those norms in the census case. “The United Nations recommends that countries ask a citizenship question on the census,” he said. “And a number of other countries do it. Spain, Germany, Canada, Australia, Ireland, Mexico ask a citizenship question.”
“It’s a very common question internationally,” he added.


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