So far, John Roberts has done an admirable & deft job of avoiding the tough questions. Watching CSPAN last night, I saw Senator Jon Kyl (R-AZ) ask Roberts about using international law to interpret the Constitution. Kyl's comments were directed at the Roper case, which cited international law in reaching a decision against executing juveniles.
Senator Kyl, in his eagerness to denounce the decision, totally misread it. Or maybe he didn't even read it. For if he had, he'd have noticed that the court did not rely on international law as precedent (as he claimed), but merely as additional support for the argument that the execution of juveniles had no place in American jurisprudence. In the opinion, Justice Kennedy points out "that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. Brief for Respondent 49-50. In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty." Roper v. Simmons, 125 S. Ct. 1183, 1199 (U.S. 2005).
In looking at that list, one can see that the other seven countries aren't very high on the list of human rights supporters. Moreover, Justice Kennedy spends considerable time in his opinion discussing such cases as Trop v. Dulles, 78 S. Ct. 590 (1958) (discussing the interpretation of "cruel and unusual", and stating (at 598) that "The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society"), Stanford v. Kentucky, 109 S.Ct. 2969 (1989) (which discussed 'contemporary standards of decency' in the US in a case concerning the execution of a minor, and found no consensus sufficient to label a particular punishment 'cruel & unusual'), Thompson v. Oklahoma 108 S.Ct. 2867 (1988) (dealing with the prohibition of minors under the age of 16), Enmund v. Florida, 102 S. Ct. 3368 (1982) (discussing whether the death penalty should apply in a felony murder case where defendant did not, kill, attempt to kill, or intend to kill) and Coker v. Georgia, 97 S. Ct. 2861 (1977) (discussing execution as a method of punishment for the rape of an adult woman, and finding that out of 60 countries surveyed, only 3 countries worldwide still held death as punishment for this crime), as well as Atkins v. Virginia, 122 S.Ct. 2242 (2002), which discussed the execution of the mentally retarded.
While Kennedy does refer to international law, he also states "[o]ur determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments." Roper v. Simmons, 125 S. Ct. 1183, 1198 (U.S. 2005). So the court acknowledges that international law should only serve as guidance, and not as precedent.
Justice Scalia took issue with the approach of looking to what other countries were doing in regard to the juvenile death penalty, not because he disagreed with the practice, but because he disagreed with the court using international law in a haphazard manner ("The Court should either profess its willingness to reconsider all these matters (abortion, establishment/separation of religion, mandatory/discretionary death penalties and the exclusionary rule) in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry. Roper v. Simmons, 125 S. Ct. 1183, 1228 (U.S. 2005)). So, though he was vilified for claiming that 'foreign and international law have no place in our Eighth Amendment jurisprudence,' he never actually made such a claim (those words are from O'Connor's dissent, in an attempt to sum up Scalia's arguments). Scalia's arguments, I dare say, have a valid point, and make perfect sense.
Senator Kyl took umbrage with the Court's use of international law as precedent, implying that we have our own 'American law' and it should be decided with 'American principles'. (To his credit, Roberts refused to bite on this, saying that international law could provide guidance, but that it was easy to pick & choose from international laws which favored the outcome one wanted, and ignored those which did not.) Unfortunately there are many ignorant people such as Senator Kyl who wish to ignore what the rest of the world is doing, then wonder why there is Anti-American sentiment . Too often, this country sets rules others should follow (for example, by participating in the International Criminal Court) but then refuses to follow those same rules itself (as we have done by failing to ratify the treaty establishing the ICC). To argue that international law has no place in American jurisprudence is to engage in an obvious form of hubris - we're better than everyone else - and will ultimately cost our country. Not today, and not tomorrow, but over time, as the rest of the world moves in one direction while we move in another. If we are truly to be a superpower, we cannot forge our own path and ignore everyone else; we must work with other countries to help them improve, and to improve ourselves.
Only time will tell if Roberts will follow Scalia's lead, and push the court to be more consistent in its use of international law, or if he'll subscribe to Senator Kyl's misguided theory that American courts should ignore international laws and decide cases on 'American principles'.