Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Justice Sandra Day O’Connor received three standing ovations and amounted glass globe this week when she gave a speech at a black-tiedinner for the Atlanta-based Southern Center for International Studies. At the U.S. Supreme Court, however, O’Connor’s message — that Americancourts should pay more attention to the laws of other countries — gets amuch more mixed reception. O’Connor pointed out that her colleagues rarely consider internationallaw. But she did not mention how passionate the justices get when theydebate whether foreign court decisions should influence U.S. rulings.The issue came up in 1988, when the justices voted 5-4 that executing aman who’d committed his crime at the age of 15 violated the EighthAmendment ban on cruel and unusual punishment. Showing an early example of her control of the court’s center, O’Connorprovided the crucial swing vote, writing separately to craft a narrowerconclusion than four other justices who sided with the condemned inmate.But she did not criticize Justice John Paul Stevens’ citation ofinternational norms in favor of the inmate. Referring to information presented by Amnesty International, Stevenswrote that a consensus against executing children was consistent with”other nations that share the Anglo-American heritage, and by theleading members of the Western European community.” Thompson v.Oklahoma, 487 U.S. 815 (1988). Justice Antonin Scalia, joined by Chief Justice William H. Rehnquist andthe late Justice Byron R. White, called Stevens’ reliance on AmnestyInternational’s assessment “totally inappropriate as a means ofestablishing the fundamental beliefs of this Nation.” “We must never forget that it is a Constitution for the United States ofAmerica that we are expounding,” Scalia wrote. “In the present case,” added Scalia, “the fact that a majority offoreign nations would not impose capital punishment upon persons under16 at the time of the crime is of no more relevance than the fact that amajority of them would not impose capital punishment at all, or havestandards of due process quite different from our own.” On Tuesday night, O’Connor noted that recent decisions striking downTexas’ antisodomy law and holding that executions of the mentallyretarded violated the constitution cited as support foreign laws againstboth practices. “I suspect that over time, we will rely increasingly — or take notice atleast increasingly — on international and foreign law in resolvingdomestic issues,” O’Connor told the 450 Southern Center guests at theJ.W. Marriott Hotel. But in both cases, Rehnquist, Scalia and Justice Clarence Thomasdismissed the notion that other nations’ laws should have any bearing onU.S. jurisprudence. When the mentally retarded execution decision was announced last year,Scalia penned a scathing dissent, joined by Rehnquist and Thomas.Scalia called “irrelevant” “the practices of the ‘world community,’whose notions of justice are (thankfully) not always those of ourpeople.” Atkins v. Virginia, 536 U.S. 304 (2002). In June, Justice Anthony M. Kennedy wrote the majority opinion in theTexas sodomy decision, which overruled Bowers v. Hardwick, 478 U.S. 186(1986), a ruling that had upheld Georgia’s antisodomy law. “The right the petitioners seek in this case has been accepted as anintegral part of human freedom in many other countries,” wrote Kennedy,joined by four other justices. “There has been no showing that in thiscountry the governmental interest in circumscribing personal choice issomehow more legitimate or urgent.” Lawrence v. Texas, 123 S. Ct. 2472(2003). O’Connor concurred in the result of Kennedy’s majority decision but notits reasoning, so she wrote separately. But she did not take issue withKennedy’s notice of foreign laws. Scalia, joined by Rehnquist and Thomas, again blasted the foreigninfluences. “The Court’s discussion of these foreign views (ignoring, of course, themany countries that have retained criminal prohibitions on sodomy) istherefore meaningless dicta,” wrote Scalia. On Tuesday night, O’Connor argued that international decisions could bepersuasive authority in American courts. She added that at a time when30 percent of the U.S. gross national product is internationallyderived, “No institution of government can afford to ignore the rest ofthe world.” O’Connor, 73, pointed out that she learned this past summer — during ameeting of judges from Arab countries — that most of those nations haveestablished independent judiciaries. “The differences between our nations are fewer and less important thanour similarities,” she added.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.