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Tuesday, March 01, 2005

At the U.S. Supreme Court the “Euro Street” Counts, and American Voters Don’t Count

The blog lawyers know more about this so I’m going to tell the story through some liberal cut and pasting:

A summary of the case and what happened, Via Powerline:

The U.S. Supreme Court has held that the practice of executing individuals for crimes they committed below the age of 18 is a violation of the Eighth Amendment. Justice Kennedy wrote for the 5-4 majority (Chief Justice Rehnquist heard the case, and thus voted even though there was no “tie” without him).

Justice Kennedy relied on international law and practice to “confirm” his view that the juvenile death penalty constitutes cruel and unusual punishment. He also cited the International Covenant on Civil and Political Rights, which the U.S. signed only subject to the reservation of its right to impose the death penalty for crimes committed by persons below eighteen years of age.

What the judges wrote, via Althouse- bold emphasis hers-

Justice Kennedy:

The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.


Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

To which Justice Scalia replies- bold emphasis mine-

I do not believe that approval by “other nations and peoples” should buttress our commitment to American principles any more than (what should logically follow) disapproval by “other nations and peoples” should weaken that commitment. More importantly, however, the Court’s statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our “fidelity” to the Constitution, our “pride in its origins,” and “our own [American] heritage.” To the contrary, they are cited to set aside the centuries-old American practice–a practice still engaged in by a large majority of the relevant States–of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources “affirm,” rather than repudiate, is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court’s parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. “Acknowledgment” of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court’s judgment–which is surely what it parades as today.

And now back to Powerline for punditry on the decision. Hindrocket says it best- bold emphasis mine:

This is very bad. It's also quite odd: The Supreme Court is disdainful of public opinion in the U.S. as expressed by the laws passed by Congress and the state legislatures, but respectful of public opinion in Europe. I can understand the Washington social structure within which this world-view makes sense, but can anyone articulate a philosophy of jurisprudence in which European opinion, however manifested, is given priority over American opinion, as expressed in laws passed by legislators?

All of which means the Republicans should, indeed MUST use the nuclear option to break the democratic filibuster that stops judges from being voted upon in the Senate. Screw it. Go for it. But, hat tip to Powerline again- this New Yorker article says they won’t. Which is the suck.


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