As someone who greatly values stare decisis, I was disappointed by Justice Kennedy's majority opinion. There just isn't much there to justify overruling a 16-year-old precedent and striking down 18 state laws. I'm not sure about the juvenile death penalty as a matter of policy, but I found Justice Scalia's powerful dissent pretty tough to refute as a matter of constitutional law.Kennedy's reasoning is profoundly disturbing for several reasons, including the absurdity of classifying teenagers as sufficiently mature to choose abortion (without parental consent) but somehow too young to be executed for heinous murder. Roper, Slip Op. at 11-12 (Scalia, J., dissenting). (Yesterday's case addressed the jury-imposed death sentence on Christopher Simmons who, at age 17, broke into Shirley Crook's home at 2am, bound her hands, feet, eyes and mouth with duct tape, frog marched her to a railroad trestle, and threw her into the Meramec River below. Ms. Crook survived the fall, but drowned. Roper, Slip Op. at 2.)
My focus here is Kennedy's contribution to the snowballing practice of using foreign law to interpret the United States or State Constitutions. Slate's Tim Wu noticed it last year:
Legal "comparativism" in the Supreme Court is staging a comeback. In Atkins v. Virginia, the 2002 decision in which the court barred the execution of the mentally retarded, the following sentence appeared in Justice Steven's opinion: "Within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." And Lawrence, last year's sodomy decision, also used foreign materials, albeit to refute international claims made in an earlier case. In 1986, then-Chief Justice Warren Burger (a great xenophile) had argued in Bowers v Hardwick that bans on gay sex were "firmly rooted in Judeo-Christian moral and ethical standards." In Lawrence, Justice Anthony Kennedy pointed out that whatever ancient practice might have been, England in particular (perhaps under the influence of David Beckham) and Europe in general had changed their minds. Even the current chief justice, William Rehnquist, has dabbled in comparativism—discussing the Dutch experience in the course of rejecting a right to assisted suicide in 1997's Washington v. Glucksburg.Drawing from the briefs of death penalty opponents, Kennedy uses a foreign head-count as evidence that the execution of minors is "cruel and unusual" in violation of the Eighth Amendment:
[O]nly seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. Brief for Respondent 49-50. In sum, 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. Roper, Slip Op. at 23.But Kennedy's ridiculous reasoning gets worse when he relies on (among others) Jimmy Carter:
As respondent and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18. United Nations Convention on the Rights of the Child, Art. 37, Nov. 20, 1989, 1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468.1470 (entered into force Sept. 2, 1990); Brief for Respondent 48; Brief for European Union et al. as Amici Curiae 12.13; Brief for President James Earl Carter, Jr., et al. as Amici Curiae 9; Brief for Former U. S. Diplomats Morton Abramowitz et al. as Amici Curiae 7; Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 13.14. No ratifying country has entered a reservation to the provision prohibiting the execution of juvenile offenders. Parallel prohibitions are contained in other significant international covenants. See ICCPR, Art. 6(5), 999 U. N. T. S., at 175 (prohibiting capital punishment for anyone under 18 at the time of offense) (signed and ratified by the United States subject to a reservation regarding Article 6(5), as noted, supra, at 13); American Convention on Human Rights: Pact of San José, Costa Rica, Art. 4(5), Nov. 22, 1969, 1144 U. N. T. S. 146 (entered into force July 19, 1978) (same); African Charter on the Rights and Welfare of the Child, Art. 5(3), OAU Doc. CAB/LEG/ 24.9/49 (1990) (entered into force Nov. 29, 1999) (same). Roper, Slip Op. at 22-23.Simply put, Kennedy says the Constitution should be interpreted to be consistent with international treaties. He does so despite the inconvenient facts that:
- Article VI of the Constitution provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.
- We haven't ratified the principal cited Treaty, meaning it has no force or effect in the United States.
- The cited Treaties America has signed are subject to a reservation covering juvenile executions, the very issue in the case. See Roper, Slip Op. at 17 (Scalia, J., dissenting).
Dahlia Lithwick, praising Kennedy in Slate, is unintentionally hilarious:
Kennedy confirms not only his contempt for Scalia's oft-stated opinion that international law is utterly irrelevant to this court, but also his growing status as the high court's Mr. International Guy—world traveler, diner with diplomats, and suave European wannabe."Mr. International Guy?" Does Article III, establishing the Judiciary, mention foreign law or create a Supreme Court globe-trotter slot?
Following Senate confirmation in 1988, Kennedy took office as Associate Justice with this promise:
I, [Anthony Kennedy], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.I agree with Conservative Dialysis that forcing consistency with foreign laws and inapplicable treaties neither supports nor defends our Constitution. Kennedy has violated his oath and the public's trust. Pursuant to Article I, Section 3 of the Constitution, the House of Representatives should promptly press formal charges, and the Senate then Impeach, Justice Anthony Kennedy. More:
Iowa Hawk -- heh -- agrees:
WASHINGTON, DC - In a far-reaching decision that will likely create complicated consequences for the American livestock and wedding-planning industries, the Supreme Court this morning ruled 5-4 that all US marriage dowries "must include three non-diseased oxen."
Writing for the majority, Justice Anthony Kennedy cited "the weight of the expansive penumbra surrounding the historically emerging and prevailing opinions of tribal shamans from Lesotho to Myanamar" in issuing the historic ruling in American Cattleman Association vs. Modern Bride, Helverson, et al.