Global Policy Forum

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?' "

FAIR USE NOTICE: This page contains copyrighted material the use of which has not been specifically authorized by the copyright owner. Global Policy Forum distributes this material without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. We believe this constitutes a fair use of any such copyrighted material as provided for in 17 U.S.C § 107. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner.