Justice Sandra Day O'Connor received three standing ovations and a mounted glass globe this week when she gave a speech at a black-tie dinner for the Atlanta-based Southern Center for International Studies.Since, as CAC’s Skip Oliva pointed out to me, it is unlikely that O'Connor will rely on Africa or Asia to reach her decisions, we can expect a court influenced by European jurisprudence. The idea that US law could be decided by taking into account European legal customs is appalling. After all, I think it was in the third grade that I mastered the principle that pointing to what the kid across the street’s parents allowed him to do was not a valid argument.
At the U.S. Supreme Court, however, O'Connor's message -- that American courts should pay more attention to the laws of other countries -- gets a much more mixed reception.
O'Connor pointed out that her colleagues rarely consider international law. But she did not mention how passionate the justices get when they debate whether foreign court decisions should influence U.S. rulings. The issue came up in 1988, when the justices voted 5-4 that executing a man who'd committed his crime at the age of 15 violated the Eighth Amendment ban on cruel and unusual punishment.
Showing an early example of her control of the court's center, O'Connor provided the crucial swing vote, writing separately to craft a narrower conclusion than four other justices who sided with the condemned inmate. But she did not criticize Justice John Paul Stevens' citation of international norms in favor of the inmate.
Referring to information presented by Amnesty International, Stevens wrote that a consensus against executing children was consistent with "other nations that share the Anglo-American heritage, and by the leading members of the Western European community." Thompson v. Oklahoma, 487 U.S. 815 (1988).
Justice Antonin Scalia, joined by Chief Justice William H. Rehnquist and the late Justice Byron R. White, called Stevens' reliance on Amnesty International's assessment "totally inappropriate as a means of establishing the fundamental beliefs of this Nation."
"We must never forget that it is a Constitution for the United States of America that we are expounding," Scalia wrote.
"In the present case," added Scalia, "the fact that a majority of foreign nations would not impose capital punishment upon persons under 16 at the time of the crime is of no more relevance than the fact that a majority of them would not impose capital punishment at all, or have standards of due process quite different from our own."
On Tuesday night, O'Connor noted that recent decisions striking down Texas' antisodomy law and holding that executions of the mentally retarded violated the constitution cited as support foreign laws against both practices.
"I suspect that over time, we will rely increasingly -- or take notice at least increasingly -- on international and foreign law in resolving domestic issues," O'Connor told the 450 Southern Center guests at the J.W. Marriott Hotel.
Every legal decision in the United States should be able to be reduced to the core facts of reality that drive it. While most reasoning is implicit, no American court should permit itself the shortcut of considering the customs of others in reaching its own conclusions. Our courts should not be influenced by Europe—they should be influenced by reality.