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Earlier this month, Supreme Justice Antonin Scalia could barely contain his contempt for the Court majority when it invoked international consensus to support its view that the juvenile death penalty is unconstitutional. If Scalia was angry then, wait until the case of Castle Rock v. Gonzales, set for argument Monday, March 21. That case, involving the tragic domestic violence murder of three children in Colorado, tests whether their mother, Jessica Gonzales, had a due process right to police enforcement of a protection order against her husband � and a federal civil rights remedy when police failed to enforce it. At first blush, the case might not seem to lend itself to the kind of international law analysis that became part of Roper v. Simmons, the March 1 juvenile death penalty decision, as well as other rulings in the last few years on executing the mentally retarded ( Atkins v. Virginia), gay rights ( Lawrence v. Texas), and affirmative action ( Grutter v. Bollinger). But one amicus curiae brief filed in Castle Rock by international law scholars and human rights groups argues that, in fact, rights relating to the prevention of domestic violence are very much supported by treaties and international law. “There are some very potent international sources,” says the brief’s author, Jennifer Brown, vice president and legal director of Legal Momentum, formerly the NOW Legal Defense and Education Fund. “We felt we were doing a real service to the Court by bringing them to the Court’s attention.” She cites the International Covenant on Civil and Political Rights, which was also mentioned in by the majority in the juvenile death penalty case � and disparaged by Scalia in dissent. The covenant does not mention domestic violence specifically, but has since been interpreted by some international bodies to require both prevention of and remedies for gender and domestic violence. The brief also invokes the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child, both of which have been signed, but not ratified, by the United States. Taken together with other findings by the United Nations and other agencies, the brief argues that “state failure to provide effective protection from domestic violence is recognized as a specific, universal and obligatory violation of human rights throughout the world . . . that gives rise to a right of compensation.” Opponents � including the Bush administration � argue that there is no such right, no entitlement to police enforcement of the restraining order. “That brief is a waste of time,” says D.C. solo practitioner Erik Jaffe, a former Clarence Thomas law clerk who is part of the legal team in the case for the town of Castle Rock. “I can’t imagine that even the most ardent supporters of international law will look at a bunch of unratified treaties and think they point toward a U.S. constitutional right to enforcement.” Jaffe, not given to understatement, adds, “If I was trying to write a parody to show the harm of overusing international law, this is the brief I would write.” Its only possible value, Jaffe says, might be to warn justices that if they support Castle Rock, they might get the cold shoulder from the next group of international judges they meet: “I think they’ll pretend the brief doesn’t exist and save it for the year-end humor show.” Tony Mauro can be contacted at [email protected].

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