The U.S. Supreme Court has held that the practice of executing individuals for crimes they committed below the age of 18 is a violation of the Eighth Amendment. Justice Kennedy wrote for the 5-4 majority (Chief Justice Rehnquist heard the case, and thus voted even though there was no “tie” without him).
Justice Kennedy relied on international law and practice to “confirm” his view that the juvenile death penalty constitutes cruel and unusual punishment. He also cited the International Covenant on Civil and Political Rights, which the U.S. signed only subject to the reservation of its right to impose the death penalty for crimes committed by persons below eighteen years of age.
In my view, the reliance of foreign law and practice is a symptom of the Court’s problem, not the problem itself. The Court has appropriated from the American people the role of social arbiter. Thus, it strikes down longstanding policies and practices adopted through the democratic process on the grounds that five or more Justices personally don’t approve. This creates a question of legitimacy which causes the Justices to scrounge for support. Since the Justices preferences often don’t correspond to the preferences of majorities here, they naturally look to Europe. They lack the political savvy to realize that doing so only makes their work seem even less legitimate.
Or perhaps I’m completely wrong. Maybe the offending Justices don’t really care about whether the Court is perceived as legitimate, and just refer to international stuff because they are trained to cite things.
NRO’s Corner is buzzing about the decision. It also has a useful link to Julian Ku.
HINDROCKET adds: This is very bad. It’s also quite odd: The Supreme Court is disdainful of public opinion in the U.S. as expressed by the laws passed by Congress and the state legislatures, but respectful of public opinion in Europe. I can understand the Washington social structure within which this world-view makes sense, but can anyone articulate a philosophy of jurisprudence in which European opinion, however manifested, is given priority over American opinion, as expressed in laws passed by legislators?
This post should be read in conjunction with the one immediately below. It is hard to overstate the importance of the next several Supreme Court appointments.
ONE MORE: Via Hugh Hewitt, a classic quote in defense of American freedom from Justice Scalia:
The Court thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.