Should international law be considered as the U.S. Supreme Court begins new session?

The Supreme Court begins the latest session today. Photo: AP

As the Supreme Court begins it's new session today, the country watches with anticipation what could be a very historic year for the court.

Issues to be brought before the court this session range from campaign finance, gun control issues, government accountability in detainee treatment, as well as a whole host of various business cases.

This court will see the addition of Justice Sonia Sotomayor, and what she may add to the look of the court, though most feel she will vote with those judges of the liberal slant.

However, even as all eyes are on Justice Sotomayor, perhaps the real power lies in the hands of Justice Anthony Kennedy.  Kennedy is the "swing-vote," of the court and perhaps the lone justice who may determine which direction the nation goes on these sure to be 5-4 ruling issues facing the court.

With such power to wield, it may prove prudent to look closer at justice Kennedy and particularly, his controversial usage of international law in his decisions.  As the most active member of the court in international affairs, Justice Kennedy, who teaches international and American law during the court's summer recess in Salzburg, Austria for the McGeorge School of Law international program, as well as regularly attending the large yearly international judges conference held there.

Most notable in Kennedy's usage of international law in his jurisprudence, was the March 1, 2005 decision in the Roper vs. Simmons case.  In Roper vs. Simmons, the court in a 5-4 decision, ruled that it was unconstitutional for a minor to be sentenced to capital punishment for a crime.  In the case, Christopher Simmons, who was 17, plotted and murdered Shirley Cook with the help of two younger cohorts.  The State of Mississippi convicted Simmons and sentenced him to death.  Upon appeal the Supreme Court of Mississippi determined that a minor could not receive the death penalty, and the case went from there to the U.S. Supreme Court.

The controversy surrounding the court's decision arose from Kennedy's citing of international consensus on the topic of juvenile execution.  He asserted that between 1990 and the time of the case, "only seven countries other than the United States had executed juvenile offenders ... : Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China."  Justice Kennedy noted that since 1990 each of those countries had either abolished the death penalty for juveniles or made public disavowal of the practice, and that the United States stood alone in allowing execution of juvenile offenders. The Court also noted that only the United States and Somalia had not ratified Article 37 of the United Nations Convention on the Rights of the Child (September 2, 1990), which expressly prohibits capital punishment for crimes committed by juveniles.

Such enactment of international law began a firestorm of criticism towards Kennedy and the court, especially from conservative members of Congress.  Rep. Todd Tiahrt, R-Kan., expressed his concern about Roper v. Simmons, stating that invoking international law went "beyond the rule of law."  Many other Congressional leaders criticized the usage of international precedent as well, asserting that the court was to measure law against the Constitution of the United States and nothing else.

The controversy however, has not phased Justice Kennedy.  In 2008 he addressed the closing session of the annual Judicial Conference of the 9th U.S. Circuit Court of Appeals with a warning that two-thirds of the people of the world live outside the rule of law.  Kennedy referenced global poverty and failed states when he asserted that, "The rule of law today is in mortal danger."   He went on to say, "Our security is at risk and our humanity is at risk," he told the ballroom of several hundred lawyers and judges.

A majority of Kennedy's speech focused on the need for strengthening the rule of law around the world, especially in the third-world and failed states, as he asserted failure to do so will result in globalization becoming "..a danger to us all."

Should such rhetoric and philosophy be a cause of concern for the American people?  Is the usage of international law and norms dangerous to the preservation of the court and the constitution?  Many would say yes, that when considering issues of national security and gun control, international law has no merit nor place in the decisions of the Justices.  If international law does hold more influence, then issues such as gun control rights may indeed be influenced by the laws of nations that ban private gun ownership.  Perhaps the executive branch will find itself culpable as both presidents Bush and Obama have broken some international laws and practices in the detaining of what the government labels "enemy combatants." 

Ultimately time will tell if international law will further influence Justice Kennedy's rulings in the variety of cases facing the Supreme Court this session.  The safe bet is that he will, for the most part stick to the Constitution for his basis.  It is indeed a good question to ponder as we march forward into this global age.  What weight should international law and precedent have in U.S. courts, if any?  We are surely engaging the world ever more as time unfolds, with treaties and agreements entered seemingly everyday.  Yet, does this mean the U.S. should hearken to world decisions or merely take them into consideration?  Let us reflect, and examine these questions, as well as the decisions presented by the Supreme Court this session, for history will surely be made.

 For more information:

http://www.law.com/jsp/article.jsp?id=1202423585391

http://en.wikipedia.org/wiki/Roper_v._Simmons

http://www.law.com/jsp/article.jsp?id=1113296710622