Occassional reflections of a moderate (hey at least I think I am)

Friday, April 22, 2005

Supreme Court and Foreign Authority

In response to this post over at Prof. Althouse’s site relating to the question whether Supreme Court citations to foreign authorities is “incredibly outrageous” I tried (Blogger was acting funny) to post the following:

I suppose whether or not you believe the recent decisions citing foreign authorities are "incredibly outrageous" depends on how you view the use of those citations. If you believe (as Scalia, Delay, and several commenters here believe) that the citations are made as "part of the basis for the Court’s judgment" then you believe they are bad. If you believe these citations merely reflect "respected and significant confirmation" of the Court's judgment then you are not necessarily offended by the citations.

I actually went and read the decision in Roper v. Simmons as a result of this thread. I know that Scalia is an incredible legal mind, an excellent writer and, from what I have heard, a genuinely engaging personality. Reading this decision reminded me how derisive he can be. I don't read many Supreme Court cases anymore, does anyone know if he picks and chooses when he "respectfully" dissents (as opposed to merely "dissent")?

A couple of further points. I think that Scalia has a good point near the end of his dissent when he says “’Acknowledgment’ of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court’s judgment.” I think including these references to foreign authorities invites the conclusion that those authorities are the basis for the decision despite protestations of the majority to the contrary. I would have preferred a decision which did not focus so much on the foreign aspects including amici but at least the majority is always careful to say that they are not basing the decision on foreign law.

[I think that, if the majority and Justice O’Connor are to be believed, the decision rests on the analysis of whether there is a “national consensus against the death penalty for juveniles”. The majority thinks there is, O’Connor thinks there is not. (Scalia doesn’t think this is the right question but is willing to say (paraphrasing here) “Even if it were the right question, hey Anthony (Kennedy) you can’t count!”)]

The degree to which he derides both the majority opinion and the separate dissenting opinion really struck me. Like I said, I haven’t read Supreme Court cases as much as I used to but he seems even more caustic than I remember him. His insistence that the majority bases their decision on foreign authorities, basically calls the majority liars. It seems to me though that he saves some of his harshest tones for Justice O’Connor as if to say “You like to think you are different than them, but you are just as bad.” If anyone knows of an article or a book about the collegiality of the Court as currently composed I would be fascinated to read it.

Finally, many people are upset that as a result of the decision capital punishment cannot be imposed on anyone under the age of 18. I wonder how many of those people, if any, would be concerned about executing 14 year olds or 8 year olds. It is clear that there are 3 Justice who support capital punishment as to 14 year olds and as to 8 year olds (assuming a State could overcome a presumption of incapacity).


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