Need more like Scalia on the Court

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