Global legal trends make waves at high court

A few minutes into the oral argument over the juvenile death penalty last week at the US Supreme Court, Justice Anthony Kennedy posed a question. He wondered whether significant international opposition to juvenile executions should influence how an American justice interprets the Constitution's prohibition against cruel and unusual punishment.

"Does that have a bearing on what is unusual?" Justice Kennedy asked.

The query was aimed at a government lawyer, but it could have just as well been directed to the court itself.

How the court approaches Kennedy's question is important for two reasons. First, it highlights an emerging trend on the nation's highest court in which a majority of justices are increasingly willing to cite international law and foreign judgments to support their decisions. Second, 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.

"I think the way Justice Kennedy asked his question was telling," says Richard Wilson, a law professor at American University in Washington who attended the court session. "He 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?"

Currently, six of the justices - including Justices Kennedy and Sandra Day O'Connor - support using references to international law in decisions. Three justices have announced opposition to the trend.

Critics view this growing internationalist approach as a potential source of unrestrained judicial activism. They say it is being driven by justices willing to use international law as cover to impose their own policy preferences rather than remaining faithful to the original intent of the Constitution's framers.

Supporters of the trend see it as a progressive 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 Professor Wilson, who wrote a friend-of-the-court brief on behalf of 48 countries urging the justices to declare the juvenile death penalty unconstitutional.

The court is sharply divided on that question. Four justices had earlier announced their willingness to strike down the juvenile death penalty. Three others seem just as determined to uphold it. That leaves Justices O'Connor and Kennedy in the middle, with one of them potentially wielding the deciding fifth vote.

Given that both justices are apparently open to looking overseas for support in key cases, the international aspect of the case could prove decisive.

In the past four years, only five countries have executed individuals for crimes they committed when younger than 18 - the Democratic Republic of Congo, China, Iran, Pakistan, and the United States, according to a friend-of-the-court brief. It adds that all but two countries - Somalia and the US - have ratified the UN's Convention on the Rights of the Child, which bars capital punishment for juveniles.

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