Foreign Law? Congress V. the Supreme Court

Foreign Law? Congress V. the Supreme Court

Foreign Law? Congress V. the Supreme Court

Foreign Law? Congress V. the Supreme Court

Synopsis

After the decisions in Lawrence v. Texas (2003) and Roper v. Simmons (2005), the Supreme Court's use of foreign law became a hotly contested issue in Congress, the media, and among conservative political activists. Lawrence Baum (2006) argues the Justices are sensitive and respond to the reaction of external audiences. The reaction of the Justices to the controversy over the use of foreign law indicates that the Justices care more about cases than just their disposition or particular policy agendas, and provides further evidence that the Justices take into account their relationships with other actors and audiences.

Excerpt

On June 25, 2008, Justice Anthony Kennedy announced the decision for the United States Supreme Court in Kennedy v. Louisiana. The question presented in the case was whether Louisiana violated the Eighth Amendment’s ban on cruel and unusual punishment by imposing the death sentence for the crime of the rape of a minor. Patrick Kennedy was convicted of raping an eight-year old child and sentenced to death in 2003. Justice Kennedy’s decision for the Court asserted that the death penalty was not “a proportional punishment for the rape of a child” (446).

In discussing the application of the Eighth Amendment to the case, Justice Kennedy relied upon the “objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions” (Kennedy, 442 [citing Roper v. Simmons]). In Trop v. Dulles (1958), Chief Justice Earl Warren stated that in considering the meaning of the Eighth Amendment, the Court must consider the “evolving standards of decency” (Kennedy, 101). Those standards developed to include “historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made before bringing its own judgment to bear on the matter” (Edmund v. Florida [1982], 788-789). In analyzing how the sentence of death applied in Kennedy’s case, Justice Kennedy discussed the content of crimes punishable by death in the laws of the various States and how jurors applied the death penalty in non-capital cases.

One element missing from Justice Kennedy’s opinion in Kennedy was a discussion of treaty obligations of the United States and decisions of international courts. At the time of the opinion, the United States was a signatory of the International Covenant on Civil and . . .

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