In a hearing last week, Supreme Court Justice Anthony Kennedy wondered whether significant international opposition to juvenile executions should influence how the court interprets the Constitution’s prohibition against cruel and unusual punishment. The query was aimed at a government lawyer, says the Christian Science Monitor, but it could have just as well been directed to the court itself. How the court approaches the question is important for two reasons. It highlights an emerging trend in which a majority of justices increasingly are willing to cite international law and foreign judgments to support their decisions. With substantial opposition to capital punishment in Europe and elsewhere, it could play a key role in determining the outcome of the juvenile death-penalty case. Richard Wilson, a law professor at American University, said that Kennedy “asked about whether the word ‘unusual’ in the Eighth Amendment phrase ‘cruel and unusual’ refers to ‘unusual’ in the United States, or is it ‘unusual’ in the world?”
Six justices – including Kennedy and Sandra Day O’Connor – support using references to international law in decisions. Three justices have announced opposition to the trend. Critics view the growing internationalist approach as a potential source of unrestrained judicial activism. Supporters of the trend see it as a safeguard to fundamental freedoms, with justices seeking to broaden their horizons beyond the parochial interests of a single country in recognition of international legal norms that reflect the shared values of mankind. “What the court is saying is we can look to the world community for guidance and not to put blinders on to what is happening in the rest of the world,” says Wilson, who wrote a brief on behalf of 48 countries urging the court to declare the juvenile death penalty unconstitutional.