Global legal trends make waves at high court

To supporters of the juvenile death penalty and other legal analysts, such evidence of international rejection of juvenile executions should be irrelevant to US constitutional analysis. "Why should we care what foreign countries think our Constitution means?" asks John Yoo, a professor at Boalt Hall School of Law at the University of California in Berkeley.

"We could certainly ask them what they think their constitution means, but they are not part of our political community. And that is what the Constitution does - it recognizes a political community and establishes its rules for self-government," Professor Yoo says.

Tom Geraghty has a different view. "All countries with our tradition of jurisprudence have decided that the application of the death penalty to juveniles is violative of human rights norms," says Mr. Geraghty of the Bluhm Legal Clinic at Northwestern University School of Law in Chicago.

He wrote a friend-of-the-court brief on behalf of 13 individuals and four organizations awarded the Nobel Peace Prize. The brief urges an end to the juvenile death penalty. "The Nobel Peace Prize and its winners are a testament to the relevance of global opinion and practice in the area of human rights, and the importance of respecting internationally accepted standards of morality," Geraghty's brief says.

Supreme Court justices have long cited international decisions. But several cases in recent years have not only raised red flags among critics but also prompted dissents from within the court itself.

In 2002, when the court struck down the death penalty for mentally retarded individuals, Justice John Paul Stevens noted in his majority opinion that the practice was "overwhelmingly disapproved" within the world community. That drew a response from Chief Justice William Rehnquist: "I fail to see ... how the views of other countries regarding the punishment of their citizens provide any support for the court's ultimate determination."

In October 2002, Justice Stephen Breyer cited decisions of three foreign courts - the British Privy Council, the European Court of Human Rights, and the Supreme Court of Canada - supporting legal principles he felt should be applied in the case of a US death-row inmate: "Just as attention to the judgment of other nations can help Congress determine the justice and propriety of America's measures, so it can help guide this court when it decides whether a particular punishment violates the Eighth Amendment."

Justice Clarence Thomas, in a written reply, responded: "While Congress, as a legislature, may wish to consider the actions of other nations on any issue it likes, this court's Eighth Amendment jurisprudence should not impose foreign moods, fads, or fashions on Americans."

In June 2003, Kennedy cited a decision by the European Court of Human Rights for support in his landmark decision upholding gay rights in a Texas case: "The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries."

In a dissent, Justice Antonin Scalia replied: "Constitutional entitlements do not spring into existence ... as the court seems to believe, because foreign nations decriminalize [homosexual] conduct."

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