Tag: Eighth Amendment

Justice Kennedy Discusses Cato’s View on Use of Foreign Law

One quick addendum to my previous commentary on this week’s decision in Graham v. Florida the use of foreign law by U.S. courts: Toward the very end of Justice Kennedy’s majority opinion, in part D where he gratuitously nods to world opinion about juvenile life-without-parole (LWOP) sentences, he takes issue with one of the lesser arguments we make in our brief, that no international treaty prohibits such sentences.  (See page 31 of the Graham opinion – note that Cato itself is not mentioned because we were one of 13 groups signing the brief – and pages 14-16 of our brief.)  Kennedy says that the issue of whether international law prohibits the United States from imposing the juvenile LWOP sentences is beside the point, that the proper question to ask is whether such sentences are “cruel and unusual.” 

Well, yes, that’s the correct standard under the Eighth Amendment, and I’m glad that Justice Kennedy did not side with opposing amici and those in the legal academy who argue that various international conventions (or customary international law) do require such a prohibition.  But Kennedy’s point here raises a further question: why is what someone in France or Japan or Brazil or Saudi Arabia says on the matter relevant to what is cruel and unusual under U.S. law?

The Use and Misuse of Foreign Law in U.S. Courts

On Tuesday I discussed the Supreme Court’s decision to strike down laws that allow juveniles to be sentenced to life without parole (LWOP) for non-homicide crimes.  What concerns me here isn’t so much the morality or policy wisdom in applying such sentences – though Chief Justice Roberts makes some good policy points in his concurrence – or even the interpretation of what constitutes a “cruel and unusual punishment” – which I think Justice Kennedy mishandles in a confusing discussion of national consensuses. 

No, the most troubling part of that case was the unfortunate reference to foreign authorities to support the Court’s interpretation of the Eighth Amendment.  Justice Kennedy notes that juvenile LWOP has been “rejected the world over.”  “The judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency,” he writes, “demonstrates that the court’s rationale has respected reasoning to support it.”

Justice Thomas, in his dissent, disputes Justice Kennedy’s math, noting that 11 countries allow the punishment. More importantly, “foreign laws and sentencing practices” are “irrelevant to the meaning of our Constitution.”  He adds that most democracies around the world remain free to adopt the punishment should they wish to. “Starting today,” Thomas concludes, “ours can count itself among the few in which judicial decree prevents voters from making that choice.”

And that’s the crux of the matter: citing foreign law, using it to support a given reading of domestic law undermines democratic self-governance.  The interpretation of the U.S. Constitution should depend on that document’s text, structure, and history, what it means in the context of the American polity.  Even if a judge cares about ”evolving standards of decency” or invokes the “living Constitution,” it should be the updated standards in America that matter, or the opinions and values of modern Americans

That is, federal judges derive their powers from the Constitution, which is a wholly American document.  To the extent they use foreign extrinsic evidence to interpret this document, they are engaging in something – comparative law? social science? – that is not judging.  It’s not a matter of being closed-minded or provincial – I actually enjoy reading comparative political research, and think our legislators and constitutional draftsmen engage in malpractice if they don’t use it – but, as Justice Thomas describes in Graham, the judicial role is different than the legislative or academic one.

Now, in practice U.S. courts actually rarely cite foreign law, and most of the time when they do it’s not controversial. For example, it’s relevant to see how all the contracting parties interpret a treaty, because you want a treaty (a contract among nations) to be understood the same way everywhere. Similarly, foreign court pronouncements are relevant to interpreting customary international law – the law of nations as the Framers understood it – to the limited extent it applies to a given case (crime on the high seas and the like). Next we have the coordination of litigation, with international companies suing each other based on contracts that specify that “X” provision is subject to British law whereas “Y” deals with Hong Kong law, and that the arbitration forum is supposed to be Switzerland: here the citation of foreign law is absolutely appropriate. Another appropriate use is in conflict of laws analysis: figuring out which law applies and sometimes even applying foreign law as binding in a dispute.

But using foreign law to interpret domestic law, and especially the Constitution, is problematic – but the Supreme Court does it more than lower courts, particularly in high profile cases: those involving the culture wars, moral issues like the death penalty and abortion, and other charged cases like affirmative action and sex discrimination.  Libertarians should not welcome this trend because it signals judging based on something other than the principled reading of our own laws – in short, judicial usurpation of the policy-making function.

Hans Bader of CEI provides a longer write-up of Graham, and here again is Cato’s brief. For a pithy critique of the improper use of foreign law by U.S. courts, see Richard Posner’s now-famous article in Legal Affairs.  And for an in-depth and entertaining exploration of these issues, read or watch a debate Justices Scalia and Breyer had in 2005.

Coincidentally, the same day the Court issued both Graham and Comstock (which I discuss here), it also decided an important case, Abbott v. Abbott, that uses foreign law to interpret an international treaty on child abduction.  (While I haven’t yet gone through the Abbott decision, both the majority and dissent are correct to use foreign law to help them reach their conclusions.)

A New Court Term: Big Cases, Questions About the New Justice

Today is the first Monday in October, and so is First Monday, the traditional start of the Supreme Court term.  The Court already heard one argument – in the Citizens United campaign finance case – but it had been carried over from last year, so it doesn’t really count.

In any event, continuing its trend from last term, the Court has further front-loaded its caseload – with nearly 60 arguments on its docket already.  Fortunately, unlike last year, we’ll see many blockbuster cases, including:

  • the application of the Second Amendment to state gun regulations;
  • First Amendment challenges to national park monuments and a statute criminalizing the depiction of animal cruelty;
  • an Eighth Amendment challenge to life sentences for juveniles; a potential revisiting of Miranda rights;
  • federalism concerns over legislation regarding the civil commitment of “sexually dangerous” persons;
  • a separation-of-powers dispute concerning the agency enforcing Sarbanes-Oxley;
  • judicial takings of beachfront property; and
  • notably in these times of increasing government control over the economy, the “reasonableness” of mutual fund managers’ compensation.

Cato has filed amicus briefs in many of these cases, so I will be paying extra-close attention.

Perhaps more importantly, we also have a new justice – and, as Justice White often said, a new justice makes a new Court.  While Sonia Sotomayor’s confirmation was never in any serious doubt, she faced strong criticism on issues ranging from property rights and the use of foreign law in constitutional interpretation to the Ricci firefighters case and the “wise Latina” speeches that led people to question her commitment to judicial objectivity.  Only time will tell what kind of justice Sotomayor will be now that she is unfettered from higher court precedent – and the first term is not necessarily indicative.

Key questions for the new Court’s dynamics are whether Sotomayor will challenge Justice Scalia intellectually and whether she will antagonize Justice Kennedy and thus push him to the right.  We’ve already seen her make waves at the Citizens United reargument – questioning the scope of corporations’ constitutional rights – so it could be that she will decline to follow Justice Alito’s example and jump right into the Court’s rhetorical battles.

In short, it’s the first day of school and I’m excited.

Use Only U.S. Law to Interpret the U.S. Constitution

This fall, the Supreme Court will hear two cases involving Eighth Amendment challenges to the sentencing of juveniles to life without parole (“LWOP”) – Graham v. Florida and Sullivan v. Florida – claims that these types of sentences are “cruel and unusual.”  Cato takes no position on the wisdom of these types of sentences, but when evaluating their constitutionality the Court should only consider American law.

That is, regardless of the criminological or moral merits of juvenile LWOP sentences, the Supreme Court ought not consider non-binding provisions of international human rights treaties and customary international law in its analysis (as it has in cases like Roper v. Simmons and Atkins v. Virginia).  To that end, Cato joined the Solidarity Center for Law and Justice, the Sovereignty Network, and 10 other groups in a brief urging the Court to limit its constitutional analysis to domestic law and the decisions of U.S. courts.

Our brief argues that the Court should leave to the political branches the decision of whether to transform international norms into domestic law and only allow duly ratified international agreements to override domestic law – in the way the Court has set out in cases such as Medellin v. Texas. It further contends that if the Court believes this is one of the rare cases where international norms are relevant, it should follow the test it laid out in Sosa v. Alvarez Machain, which addressed the (unrelated) Alien Tort Statute: The relevant norm must be widely accepted by the civilized world and as clearly defined as the historic “law of nations” norms regarding safe conduct permits, ambassadorial rights, and piracy on the high seas.

The brief also cautions that reliance on non-binding and indefinite international norms will undermine the democratic process and rule of law, casting considerable uncertainty over many U.S. laws.

More generally, while looking to foreign and international example is prudent when designing constitutions and drafting legislation – or even adjudicating complex international legal disputes – it is simply not relevant to interpreting the nation’s founding document.