Clearly established law

Citing his own dissent (via instapundit) as clearly established law. Wow, that seems to be a shameless reach. What next for the court, citing foreign law?

JUSTICE BREYER: Blackstone said follow Breyer. (Laughter.)

JUSTICE SCALIA: But, listen, let me -- (laughter) -- let me continue. That's my approach. Justice Breyer doesn't have my approach. Okay, what is another approach to interpretation of the Constitution? Well, you know maybe 60 years or so ago we adopted, first in the Eighth Amendment area cruel and unusual punishment the notion that the Constitution is not static. It doesn't mean what the people voted for when it was ratified. It doesn't mean that. Rather, it changes from era to era to comport with -- and this is a quote from our cases, "the evolving standards of decency that mark the progress of a maturing society." I detest that phrase, but because -- (laughter) -- because I'm afraid that societies don't always mature. Sometimes they rot. What makes you think that, you know, human progress is one upwardly inclined plane every day and every way we get better and better? It seems to me that the purpose of the Bill of Rights was to prevent change, not to encourage it and have it written into a Constitution. Anyway, let's assume you buy into that. Okay? Still in all what you're looking for as a judge using that theory is what? The standards of decency of American society -- not the standards of decency of the world, not the standards of decency of other countries that don't have our background, that don't have our culture, that don't have our moral views. Of what conceivable value as authoritative would foreign law be? Now, you can cite foreign law to show, as Justice Breyer gave an example, to show that if the Court adopts this particular view, the sky will not fall. You know, if we got much more latitudinarian about our approach to the Establishment Clause, things won't be so bad. France, which is probably the strictest in Europe, still has a good deal of religious freedom and no establishment. Okay? It's useful for that.

(when you hear "enriching and uplifting," it's clearly time to run)