The Supreme Court and Foreign Law

In Roper v. Simmons, the U.S. Supreme Court decided 5-4 yesterday that capital punishment is cruel and unusual punishment to those individuals who were under 18 when they committed the crime, and therefore, unconstitutional. Just 15 years ago the Supreme Court found that the statute in question was constitutional. However, they state that because 18 of the 38 states that have death penalty laws forbid executing minors (at the time of the crime), this represents an emerging national consensus. When will the courts begin interpreting the law rather than writing it? Additionally, they rattled off a list of foreign laws to support their opinion.

In Scalia’s dissent, he wrote, "Words have no meaning if the views of less than 50 percent of death penalty States can constitute a national consensus. Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time."

[As background, the facts of the case are as follows: Christopher Simmons, then 17 years old, proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could “get away with it” because they were minors. Simmons and an accomplice later entered the home of Shirley Crook, and using duct tape to cover her eyes and mouth and bind her hands, put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below. Simmons was convicted and given the death penalty in the state of Missouri.]

The majority opinion further supports its case by citing a variety of foreign laws, including the U.N. Convention on the Rights of a Child, as part of its reasoning: “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions." To which Scalia argued, "Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, [the majority's] position."

Because of the lunacy by which the majority opinion decided the case, I thought it would be helpful to review the two views of the Court on using foreign law to influence decisions. The differences were spelled out clearly during a debate on January 13, 2005 between Justice Scalia and Justice Breyer at the American University Law School. You can view the entire transcript here or watch the debate online at www.cspan.org by searching the website. Also, Powerline had a nice summary.

Justice Breyer is in favor of looking at international law to help influence his decision; he doesn’t really give a clear reason, except to determine whether the customs and mores of the U.S. are within the reasonable standards of the rest of the world. In reality, he looks at examples that will support his opinion.

He states:

Law is not really handed down from on high, even from the Supreme Court. Rather, it emerges. And we're part of it, the clerks are part of it, but only part. And what really survives every time is the result. I tend to think of a conversation among judges, among professors, among law students, among members of the bar, because you need people to put things together, you need people to decide cases, you need people to tell you how it works out in practice. And out of this giant, messy, unbelievably messy conversation emerges law….It's what I call opening your eyes as to what's going on elsewhere.

The one thing Breyer fails to mention is that laws come from the U.S. constitution, which his sole responsibility is to interpret.

Scalia represents the viewpoint that the justices should not be looking at foreign law to interpret the U.S. constitution (with the exception of English common law for language meanings). He says that it is “arrogant” for American judges to shape the constitution to fit into their moral, enlightened view of the world. He states:

But we don't have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that what we're after is to do something that will be just like Europe, they would have been appalled. And if you read the Federalist Papers, it's full of statements that make very clear they didn't have a whole lot of respect for many of the rules in European countries.

Now, should we say, "Oh my, we're out of step," -- or, take our abortion jurisprudence, we are one of only six countries in the world that allows abortion on demand at any time prior to viability. Should we change that because other countries feel differently? Or, maybe a more pertinent question: Why haven't we changed that, if indeed the court thinks we should use foreign law? Or do we just use foreign law selectively? When it agrees with what the justice would like the case to say, you use the foreign law, and when it doesn't agree you don't use it. Thus, we cited it in Lawrence, the case on homosexual sodomy, we cited foreign law -- not all foreign law, just the foreign law of countries that agreed with the disposition of the case. But we said not a whisper about foreign law in the series of abortion cases.

Why is it that foreign law would be relevant to what an American judge does when he interprets [law]? Now, my theory of what I do when I interpret the American Constitution is I try to understand what it meant, what was understood by the society to mean when it was adopted. And I don't think it changes since then.

Unfortunately, some justices try to divine the will of the constitution in order to pull out new meanings that are convenient for the day.