Tag: Graham v. Florida

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

By
Ilya Shapiro

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?

Topics: 
Law and Civil Liberties

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

By
Ilya Shapiro

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.)

Topics: 
Law and Civil Liberties

Today’s Other Big Bad Supreme Court Opinion

By
Ilya Shapiro

As Wally points out in his Supreme Court/Kagan roundup, the Court did further damage to principled constitutional interpretation in citing foreign law as support for its holding that life-without-parole (LWOP) sentences are unconstitutional as applied to juveniles committing non-homicide crimes.  As I blogged when we filed a brief in the case, Graham v. Florida, “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 Court ought not consider non-binding provisions of international human rights treaties, other countries’ laws, or customary international law in its analysis (as it unfortunately has in several death penalty cases).  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 — as I’ve also described in the Cato Supreme Court Review. Reliance on indefinite international norms undermines both the democratic process and the rule of law, casting considerable uncertainty over many U.S. laws.  Although looking to international example is prudent when designing constitutions and drafting legislation, it is simply not relevant to interpreting the nation’s founding document.

There are other problems with Justice Kennedy’s opinion.  For example, apparently the fact that 37 states plus the District of Columbia allow juvenile LWOP sentences does not mean that there is a national consensus.  This is so even though a similar number of states did constitute a consensus against the death penalty for an adult’s rape of a child in Kennedy v. Louisiana (which Roger discussed in the pages of the Supreme Court Review) – even though there the federal government itself had recently passed a law authorizing the death penalty for such an offense!  The point is that the whole idea of “consensus”-based constitutional interpretation is flawed.  As Josh Blackman and I wrote in our Privileges or Immunities Pandora’s Box article:

If the Supreme Court could not properly analyze the extent of the consensus among state laws governing the sentencing of child rapists, an area that any first-year law student could understand with the proper Lexis search, how can we expect judges to understand consensuses on nebulous and polarizing social issues – on which public opinion ebbs and flows – such as the right to health care, the right to education, or reproductive rights?

Moreover, what constitutes a national consensus?  Half the population? Two thirds?  Ninety percent?  To paraphrase Justice Brennan’s quip, why not whatever five duly confirmed justices think?  Should the Court commission its own Gallup Poll?  What standard should the consensus be based on?  How long should it exist?  These are inherently subjective determinations, not reducible to judicially or legislatively manageable standards.

Finally, Eugene Volokh points out the judicial policy-making (the imposition of a judge’s own views) inherent in Justice Stevens’s concurring opinion – likely the senior associate justice’s last pronouncement on the death penalty.  And for more on the case generally, see Lyle Denniston’s write-up at SCOTUSblog.

In short, this is a dog’s breakfast of a case – again, regardless of what one thinks about the underlying criminological/moral issues – and truly an unfortunate day for principled jurisprudence and constitutional limits on power (in Graham’s case, judicial power).

Topics: 
Government and Politics, Law and Civil Liberties