The Death Penalty and the Debate over the U.S. Supreme Court's Citation of Foreign and International Law

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BACKGROUND

Is it appropriate to use foreign and international law to interpret the United States Constitution? Should the United States Supreme Court be permitted to cite foreign and international law in interpreting the U.S. Constitution? (1) These questions have generated much interest and controversy. While many justices and commentators endorse citations to foreign and international law, others have argued that it is inappropriate to interpret the U.S. Constitution based on non-U.S. law. (2)

Indeed, the appropriateness of using foreign and international law in interpreting the U.S. Constitution is arguably the most controversial jurisprudential issue in recent years. It has invoked impassioned rhetoric and violent death threats aimed at Justice Ginsburg and former Justice O'Connor (3) and has spawned an impressive, ever-growing body of literature comprised of articles by justices, (4) legal commentators, (5) and journalists. (6) Outside the pages of the Court's official reporter, several Justices have spoken publicly about the proper role of comparative legal materials in U.S. constitutional interpretation. (7) For instance, in a rare public debate, Supreme Court Justices Stephen Breyer and Antonin Scalia argued the merits of citing foreign and international law in the Court's opinions. (8) Recently, at the nomination hearings of Justices John Roberts and Samuel Alito, senators fired questions at the candidates regarding the role of comparative legal materials, probing them to publicly announce their views on this explosive issue.(9)

Perhaps most strikingly, citations to foreign and international law by U.S. courts have provoked the proposal of a congressional resolution stating that "judicial determinations regarding the meaning of the laws of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions...." (10) Similarly, the Court's citations to comparative legal materials have provoked the proposal of a bill by several senators stating that in interpreting the Constitution, a court may not rely on "any constitution, law, administrative rule, Executive Order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law." (11)

The Supreme Court's use of foreign and international law in interpreting the Constitution is not itself revolutionary; throughout its history, the Court has freely drawn on supranational law. (12) Thus, it is not the Court's mere use of comparative legal sources that has sparked the recent debate, it is the context of these references. The Court has recently cited foreign and international law to support key positions in high-profile cases dealing with hyper sensitive domestic issues, including the death penalty. (13) The Court has more than once abrogated its holdings in prior decisions, in part due to foreign and international law. (14) These references seem to indicate a conscious movement toward a transnational adjudication model and have impelled the dramatic controversy over the relevance of foreign and international law in U.S. constitutional interpretation. (15)

The Supreme Court is sharply divided into two opposing factions regarding the function of comparative legal sources in the U.S. legal system. (16) Within the past two decades alone, the relevance of comparative legal sources in U.S. constitutional interpretation has been contested, at times quite heatedly, in eight Supreme Court cases. (17)

The split among the Supreme Court Justices has primarily occurred along the liberal/conservative ideological divide--liberal-minded Justices tend toward the internationalist camp while conservative-minded Justices tend toward the nationalist camp. For example, in the highly contentious Lawrence v. Texas decision, Justice Kennedy led a majority of the Court in holding that a Texas statute making it a crime for two persons of the same sex to engage in certain sexual conduct was unconstitutional as applied to two adult males who had privately engaged in consensual sodomy. …