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Thinking Outside the U.S. By Charles Lane The Supreme Court is going global -- and not just in the sense that several
of the justices have embarked on their annual summer voyages to European
destinations. Rather, the court's own decision-making is beginning to reflect the influence
of international legal norms, as well as rulings by courts in foreign countries.
The trend peaked in the two most important cases of the recently completed
term -- the court's rulings permitting race-conscious admissions in higher
education and abolishing state prohibitions on private, consensual homosexual
conduct. In both cases, justices invoked legal principles that were not made
exclusively in the United States. In the affirmative action case, Justice Sandra Day O'Connor wrote for a 5 to
4 majority that the University of Michigan Law School's effort to enroll a
"critical mass" of black, Latino and Native American applicants could pass
muster under the U.S. Constitution -- though such programs might not be
necessary 25 years from now. Justice Ruth Bader Ginsburg wrote a separate
concurring opinion, joined by Justice Stephen G. Breyer, that noted that the
court's 25-year time frame was consistent with the International Convention on
the Elimination of All Forms of Racial Discrimination, ratified by the United
States in 1994, but that it should not be considered a firm forecast. More decisively, Justice Anthony M. Kennedy buttressed his majority opinion
in the homosexual conduct case by noting that the court's past approval of state
sodomy bans was out of step with the law in other Western democracies. Citing
opinions of the European Court of Human Rights, he wrote that "the right the
petitioners seek in this case has been accepted as an integral part of human
freedom in many other countries." The court's consideration of these international perspectives was a
breakthrough for the "transnational" legal perspective, which, advocates say,
recognizes that the United States -- historically an innovator in constitutional
adjudication -- now has much to learn from the rapidly developing constitutional
traditions of other democracies. "Human rights progress is not the same in every part of the world at the same
time," said Harold Hongju Koh, a professor of international law at Yale who
served as assistant secretary of state for democracy, human rights and labor in
the Clinton administration. "In the U.S., we're ahead on some issues, but behind
on others, such as the death penalty, gay rights and immigrants' rights." Koh noted that the court's 2002 ruling banning the death penalty for mentally
retarded criminals also invoked international opinion. In explaining why that
practice violated contemporary notions of permissible punishment, Justice John
Paul Stevens writing for a 6 to 3 majority, said that "within the world
community, the imposition of the death penalty for crimes committed by mentally
retarded offenders is overwhelmingly disapproved." Stevens attributed this
observation to a friend-of-the-court brief filed by the European Union. This approach is not without its critics, however, and some of the sharpest
criticism has come from within the court itself, especially from Justice Antonin
Scalia. Responding to Stevens in the death penalty case, Scalia sardonically awarded
Stevens's reference to the "world community" a "Prize for the Court's Most
Feeble Effort to fabricate 'national consensus.' " Citing his own words from one of the court's previous death penalty cases,
Scalia wrote: "We must never forget that it is a Constitution for the United
States of America that we are expounding. . . . [W]here there is not first a
settled consensus among our own people, the views of other nations, however
enlightened the Justices of this Court may think them to be, cannot be imposed
upon Americans through the Constitution." Scalia's view is supported by conservative legal scholars who regard the
court's use of international legal sources as an intellectually amorphous
endeavor that would subject U.S. citizens to the decisions of foreign legal
institutions. "When the court starts taking things like that into account, it
reveals itself as more interested in making policy than interpreting the fixed
texts of the Constitution or statutes," said John C. Yoo, a former Bush
administration adviser on international law, who teaches law at the University
of California at Berkeley. Koh and Yoo agree on one thing: Both said that the justices' interest in
international law has probably been influenced by meetings with fellow jurists
on their frequent visits abroad. "Today, the justices are traveling much more than they once did," Koh said.
"And when they go overseas, the question they are asked is, 'How does your
jurisprudence fit in with that of other countries?' "
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