May 17, 2010 4:31PM

Today’s Other Big Bad Supreme Court Opinion

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).