Justice Kennedy Signals A More Globally Minded High Court, By Jimmy Hoover,
9/23/16. Law360, Washington Associate
Justice Anthony Kennedy doesn’t pay attention to critics who
think the Supreme Court should disregard the jurisprudence of foreign countries
when deciding cases, suggesting Friday that the increasing “convergence” of
international law is a positive thing for the nation’s top bench.
The 80-year-old jurist said during a discussion in
Washington, D.C., hosted, fittingly enough, by the International Bar
Association that looking at the laws in other countries can be informative for
cases before the Supreme Court, rejecting a premise often peddled by his late
originalist colleague, Justice Antonin Scalia, that one of the only appropriate
times to do so is during treaty interpretation.
“Now you do get arguments like, ‘Oh, it’s the Supreme Court
being controlled by international institutions or international laws.’ No. We
learn from international law as to what works and what doesn’t. And we
sometimes learn what the essence of human freedom is,” Kennedy said.
Kennedy spoke dismissively of the public “outrage” that came
after the court’s divided 2005 ruling in Roper v. Simmons held it
unconstitutional to execute a defendant for crimes committed under the age of
18. Kennedy’s majority opinion in the case pointed out that even the
authoritarian regimes of China, Saudi Arabia and others had abandoned the
practice, leaving the U.S. to “[stand] alone in a world that has turned its
face against the juvenile death penalty.”
As Kennedy explained Friday: “We can look elsewhere to see
what is best, to see what works, to see if it fits with our constitution.”
The weight foreign laws have in U.S. Supreme Court precedent
has emerged as a wedge issue for the court in recent years. Before his passing
in February, conservative Justice Scalia had railed against a spate of opinions
that alluded to either the allowance or prohibition of controversial practices
in other countries as a basis for judges to sway one way or the other in a
case.
“Who cares? We have our laws, they have theirs,” he said in
a May 2015 speech.
On the opposite of the debate is Democratic appointee
Justice Stephen Breyer, who is just coming off of a press tour for his recent
book, “The Court and the World,” which makes the case that the U.S. should
consider the realities of global interconnectedness in domestic cases.
Often a swing-vote in cases involving gay marriage and other
culturally charged issues, Justice Kennedy does not hesitate to disappoint the
Republican establishment that nominated him and on this issue appears to have
sided entirely with Breyer.
Kennedy largely avoided controversial issues during Friday's
discussion, such as the vacancy left on the Supreme Court by Scalia’s death,
sticking largely to broad, legal issues like the “transformative” nature of the
Magna Carta and the sanctity of the “rule of law.”
Still, Kennedy offered some candor on current affairs in
what appeared to be a veiled shot at the election season.
“[Aristotle] did not think [democracy] had the capacity to
mature. And it’s our heritage, our duty, our destiny to prove him wrong.
Whether we’re getting high marks at the moment is a matter to discuss,” he
said.
--Editing by Bruce Goldman.
http://www.law360.com/articles/843829/justice-kennedy-signals-a-more-globally-minded-high-court
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