Foreign law and international opinion in the US juvenile death penalty case

If you have read my earlier posts on the Scalia-Breyer debate over foreign law in US courts, here, you will have guessed that I am neither surprised nor pleased at the US Supreme Court decision, issued yesterday, in Roper v. Simmons, striking down the death penalty for those who committed their crimes as juveniles.

(I am in fact opposed to the death penalty in domestic criminal actions, but think this is not something for the courts to legislate - the Court's reference to a "consensus" on the juvenile death penalty issue can only be, I think, some kind of very arch joke - I do accept the death penalty in such matters as war crimes, crimes against humanity, and genocide, but let me leave aside all the complicated discussion about the death penalty itself.)

The majority opinion, written by Justice Kennedy, went wildly farther than any other case in invoking international opinion, foreign law, and international law, and I find that very disturbing. It is particularly disturbing in that this is no longer merely a hobby-horse of Justice Breyer's, but something joined by Justices Kennedy and, remarkably, by Justice O'Connor, who dissented from the holding on the death penalty but specifically joined the majority in its reliance on international opinion.

Press coverage has been focused on this practice as though it will remain limited to Supreme Court cases. It will not. The language of the majority approving the practice of paying attention to foreign and international sources is more than broad enough to constitute an invitation to litigants in matters ranging from run of the mill statutory cases to the most profound Constitutional "values" cases - abortion, the death penalty, firearms, church and state issues, and free speech. Both ordinary lawyers and the whole human rights NGO community will now gear up to introduce all these materials into all levels of court cases in this country, with the blessing of the Supreme Court. The other side will have no choice but to respond in kind, seeking vindication of its own side in the same foreign and international materials. Judges will rapidly become used to the idea that this material is as good as any other.

I would predict that, unchecked by an explicit rejection of this material by the Supreme Court itself, the use of this material will spread throughout the US judicial system like an internet virus - because both sides will have to assume in any litigation that it now matters. Corporate defendants will have to search through all this material to find material for their own side; conservative legal groups will have to be able to come up with their own citations from this material, because they will have no surety that such material will not persuade the judge. Certainly numerous activist judges will find it a potent source of material for reaching their own subjective conclusions - just as Justice Scalia predicted and as the Supreme Court just did. But that won't be the worst of it. The worst of it will be the speed with which these materials and their invocation become utterly routine, far outside cases of judicial activism, with the strong possibility of a sea change in the nature of legal authority in this country. Indeed, I think the shift will at least begin to become widely noticeable up and down the court system - and essentially unstoppable - even by the end of Bush's second term.

There is really only one solution to a problem invited from the top, and that lies with a shift in the balance of power in the Court. I would say that attitudes toward foreign law and international legal materials in US constitutional adjudication has now risen to be at the very top of questions for prospective court nominees, and not just Supreme Court nominees. It is also time for Congress to take up specific measures to ensure that Article III courts are limited to US legal materials in Constitutional adjudication. This is the kind of long term, fuzzy, domestic issue that the Bush administration has shown itself frankly unable to focus on - too abstract, too long term, too indirect in its bad effects, and beyond the political event horizon - but it needs to understand the extraordinary nature of the end-run around US law that the Supreme Court has handed activists and NGOs, by handing it to everyone. It is actually a much more important long term issue than tort reform - yet it seems to me highly unlikely that the Bush administration will understand that the Supreme Court has essentially tossed down the gauntlet and that it must act, with Congress, now if it hopes to avoid, twenty five years from now, the conclusion that a sweeping invigoration of the legal materials underlying judicial activism of the Left took place on its watch.

(I will say more about all this is in an article later this year in the Hoover Institution's Policy Review. I also discuss the issue in my review of Anne-Marie Slaughter's book in the Harvard Law Review, here, at pp. 1286-1291, and 1304-1310. But it is important to understand that the Roper doctrine, with the support of the majority plus Justice O'Connor, goes far beyond anything I had contemplated in my earlier writings. I should add that the best MSM article on this issue - indeed, the best reporting on the Supreme Court - comes from Charles Lane of the Washington Post.)