Doesn't Justice Kennedy's language in Roper carefully limit use of foreign and international materials?
Arthur of Ad Populum makes an important comment to my post yesterday regarding what I see as the baleful effects of the Supreme Court's use of foreign and international legal materials in deciding the juvenile death penalty case, Roper v. Simmons (and see his further comments on the Powerline discussion and others at Ad Populum). Arthur writes:
"Ken: I'm confused. I've seen similar critiques in a bunch of places, but they seem to me simply anti-textual:
This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. (Kennedy, J., writing for the majority, at 21).
That's Kennedy, before discussing foreign law, making clear that the references to foreign law are not by any means dispositive in the case. Why doesn't that ameliorate your concerns?"
It's a fair question. The problem, I think, is that although the majority says that it is not controlling, the problem of these materials in US Constitutional adjudication is problematic long before it becomes an issue of being "controlling" legal authority. The problem, as Justice Scalia put it at the Scalia-Breyer debate on this issue at American University in January (you can find a link to the transcript at the Washington College of Law homepage, here), in the first place is not whether it is controlling legal authority. It is that by allowing in a body of material that can be used to justify a judge's decision as "persuasive" or the "reality" or the "consensus" of things as amorphous as the opinion of the "international community," it opens up large new ways in which a judge can simply decide according to his or her subjective predilections. This was Justice Scalia's point - you can find anything you like to justify anything out there in the broad world, and it does not have to be controlling authority, controlling precedent in any strict sense, to give you license to do what you would like to do. Yes, it might be harder if you are a lower court judge (and easier, if you are a Supreme Court judge) to avoid higher US court precedents. But of course many, many cases can be plausibly distinguished from the precedents, and the introduction of these legal materials - their introduction as politically and legally legitimate materials - opens new avenues for reaching conclusions that might not have been so easily justified absent their use. I don't think it's an answer, if one accepts that their use and effects will be more diffuse and subtle, to say that, well, at the end of the day they are not controlling precedential authority. So many cases are decided (and necessarily decided) on the basis of materials that are well short of that standard because facts differ from case to case.
This is essentially Scalia's argument in the American University debate. There is a different kind of argument against these materials, based on fundamental notions of fidelity to the sovereignty of the people who have entered into a particular constitutional arrangement a formed, in Lincoln's phrase, a "political community, without a political superior," fidelity to the ideal of democratic self-government. Scalia comes closer to that argument in parts of his dissent in Roper; fundamentally that argument is a political one with legal effects rather than a narrowly legal one, and it is one that I will take up more extensively in my Policy Review essay. Whereas his argument from what we might call "authorizing subjectivity" in the American University debate is one about legal rhetoric and the role of a judge - an argument about legal justification and legal language more narrowly. It was striking that he declined (perhaps because the hour was late) to take up the broader sovereignty and democratic legitimacy argument when posed as the final question from the audience in the American University debate.
Let me add, too, that Justice Kennedy's language that it "remains our responsibility" sounds much like an echo from Anne-Marie Slaughter's vision in her book A New World Order that judges in national courts around the world should develop a kind of dual role in both interpreting their national constitutional order while simultaneously drawing it into a kind of globalized, "transjudicial" order, a globalized jurisprudence. She argues that such a system is not really a set of dual allegiances, however much it sounds like exactly that, but instead protects the core of sovereignty because, after all, however much something like the death penalty or America's "outlier" (her term) protections of free speech is criticized by foreign opinion and legal materials, and however much US judges must take those views into account by at least recognizing them and responding to them, at the end of the day it is an American judge's responsibility to interpret the American Constitution.
As I argue in my Harvard Law Review review of Slaughter's book, here, however, that strikes me as implausible in the extreme. And it seems to me that Justice Kennedy is echoing exactly that sort of dual allegiance, dual function, transjudicialism line here. At the end of the day, those professing dual allegiances in things that really matter face hard choices, and they must finally tip in one direction or another. As Lincoln well knew, the United States is either a political community without a political superior, or it is not.
(Arthur, thanks for the comment - it is an important one, and I'm sure you have more to say about it.)
(Update: see Julian Ku's post at Opinio Juris.)
(Update: All my worst fears realized! Heh. Thanks Instapundit.)