[Vision2020] Consulting International Law

[Bruce and Jean Livingston]

Debbie,

No opinion of the SCOTUS overturning an internal state law has been decided BASED on international opinion.  There have been a number of cases that have looked to international law for corroboration of developing American trends.  Three come to mind, two of them death penalty cases.  They are the "no executing juveniles" case issued within the last month, Simmons v. Roper,  
http://a257.g.akamaitech.net/7/257/2422/01mar20051300/www.supremecourtus.gov/opinions/04pdf/03-633.pdf

Lawrence v. Texas, (finding criminalization of consensual intimate sexual contact between two persons of same sex in the privacy of one's home to violate the Due Process Clause)
http://a257.g.akamaitech.net/7/257/2422/26jun20031200/www.supremecourtus.gov/opinions/02pdf/02-102.pdf

and Atkins v. Virginia (no executing the mentally retarded).
http://supct.law.cornell.edu/supct/html/00-8452.ZS.html

In all of these cases, the justice who considered international law or "opinion", did so in the context of noting how out-of-step the American law at issue was with the rest of the world.  This was a confirmatory step, though, and not the reason for the decision.  The basis for the decision itself was that the American law at issue was out of step with American law.  The Court found that evolving concepts of decency in a civilized society precluded the execution of juveniles and the mentally retarded under the Eighth Amendment's "cruel and unusual punishment" clause by 5-4 and 6-3 votes.  The Court noted in these three cases that the trend in the States was to prohibit execution of the mentally retarded and juveniles, and that the targeting of homosexuals for their private intimate conduct was a new development which violated the right to liberty in the due process clause.

One might argue with the correctness of these decisions in finding a "consensus" of the States to be strongly in one direction.  Justice Scalia argues strongly against the position that sufficient consensus existed in these to have a Court insert itself into the States' natural position as the source of legislation by overturning the particular laws at issue.  In the juvenile case, Justice O'connor agreed and voted not to outlaw the practice based on insufficient consensus in the States.

Justice Scalia also indicted his peers for considering the state of similar laws outside the United States, in trying to determine the evolving sense of decency in a civilized society.  But when that is just one consideration, and a confirmatory one at that, with respect to the primary consideration of the evolving standard set in this country by the States, I think he overstates the importance of the other justices' consideration of international opinion and the consequences of so doing.  And I believe that a solid 6-3 majority of the Court, excluding Scalia, Rehnquist and Thomas, has rejected the position that international law is absolutely and always irrelevant to the consideration of laws in the United States.  

Justice Ginsburg delivered a lecture at the University of Idaho on the increasing importance of international law in the Court's consideration of decisions in the Bellwood Lecture.  A copy of that can be found here:
http://www.humanrightsfirst.org/us_law/inthecourts/LOOKING_BEYOND_BORDERS_Just_Ginsburg.pdf

I believe a google search involving international law and Justice O'Connor will turn up a similar speech.

Bruce Livingston
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