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Earlier this year, U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer faced off for a friendly debate at American University's Washington College of Law. Both justices evinced a warm admiration for each other as individuals, but there was no question about their strong disagreement over the topic at hand: the Constitutional relevance of foreign court decisions. Their discussion provided a rare glimpse into the dueling philosophies brought to the fore by the recent Roper vs. Simmons case, which ruled that minors cannot face the death penalty.
"You talk about [how] it's nice to know that we're on the right track—that we have the same moral and legal framework as the rest of the world. But we don't have the same moral and legal framework as the rest of the world, and never have," said Justice Scalia, a former University of Chicago law professor. "If you told the framers of the Constitution that what we're after is to, you know, do something that will be just like Europe, they would have been appalled."
Breyer, a former Harvard law professor, replied that the world is getting smaller, and Americans can learn a lot from other nations—about the death penalty or any other issue. "Well it's relevant in the sense that you have a person who's a judge, who has similar training, who's trying to, let's say, apply a similar document, something like 'cruel and unusual,'" he offered. "And really, it isn't true that England is the moon, nor is India."
Scalia's main criticism of citing foreign law in Supreme Court decisions—a practice employed by Justices Breyer and Kennedy, and gaining wider legitimacy—is that "it lends itself to manipulation." When justices can't find compelling arguments within the existing body of American jurisprudence, they turn to foreign decisions to make the case.
"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," said Scalia. "But we said not a whisper about foreign law in the series of abortion cases."
"Is it something where I'm citing only things that favor me? Or course not," answered Breyer, who offered examples in which he cited foreign laws that conflict with his opinions. "I mean, what I see in doing this is what I call opening your eyes—opening your eyes to things that are going on elsewhere."
Scalia poked fun at the reliance on foreign law while referring to a death-penalty case that dealt with the culpability of mentally-deficient defendants: "I can't cite a prior American opinion because I'm overruling two centuries of practice, okay?" he said. "I can't cite the laws of the American people, because, in fact, only 18 of 38 states that have capital punishment say that you cannot leave it to the jury whether the person is mentally deficient and whether that should count. So my goodness, what am I going to use?"
After waiting for the audience's laughter to subside, Scalia, using animated gestures, joked about one of Breyer's recent foreign-law citations: "[You] have a decision by an intelligent man in Zimbabwe—or anywhere else—and you put it in there, and you give the citation. By God, it looks lawyerly!"
In Roper vs. Simmons, Justice Kennedy, writing for the majority, bolstered his opinion by citing "the overwhelming weight of international opinion against the juvenile death penalty." He noted that only seven other countries have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Moreover, "Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice," and thus, "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."
Abolishing the juvenile death penalty may in fact be the right thing to do, but this is hardly the issue. The real issue is the use of international opinion as a basis of moral and Constitutional insight. When justices assume they know which countries' laws to imitate (France? Germany?) and which to disregard (Pakistan? China?), they make themselves moral arbiters for the nation's conscience. But Supreme Court justices are not elected by the American people. The Court's job is to review the laws promulgated by American legislators for the American people on the basis of the American Constitution. It is not to borrow from the decisions of foreign legislators and foreign courts for foreign peoples, all done on the basis of the justices' personal convictions. Incorporating foreign law clearly exceeds the Supreme Court's mandate.
In fact, the Supreme Court's citation of "international opinion," which is itself often based on the capricious decisions of non-elected governments, is tantamount to an American enthusiastically recommending Asian cuisine after sampling sushi for the first time. The justices are fortunate if they have even an inkling of how the "world" feels on any one moral issue, especially one as divisive as the death penalty.
Justice Scalia's dissent in Roper vs. Simmons (joined by Chief Justice Rehnquist and Justice Thomas; Justice O'Connor filed a separate dissent) made clear his disgust at the Court looking to Yemen and Nigeria to better interpret the U.S. Constitution. It makes a "mockery" of Alexander Hamilton's conviction that the Supreme Court ought to have "neither force nor will, but only judgment." Moral decisions, he said, should not "be determined by the subjective views of five Members of this Court and like-minded foreigners."
