A Fear of Foreign Law

Stephen Breyer
Stephen Breyer; drawing by James Ferguson

Perhaps no other member of the US Supreme Court has such an affinity for matters foreign as Justice Stephen Breyer. Married to a British clinical psychologist, and himself a member of France’s exclusive Académie des Sciences Morales et Politiques, Justice Breyer has thought long and hard about the relationship between US and foreign law, and the result is his latest book, The Court and the World.

One suspects that the impetus for the book may have been the recent debates, within the Court and elsewhere, over whether foreign law (and foreign viewpoints) should have any influence on Supreme Court decisions concerned with domestic matters. In 2002, Justice John Paul Stevens, writing for the Court in Atkins v. Virginia, held that the execution of mentally retarded criminals was unconstitutional because of the growing “national consensus” that it constituted cruel and unusual punishment in violation of the Eighth Amendment. In a footnote, however, Justice Stevens mentioned in passing that

within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.

This provoked the ire of Chief Justice William Rehnquist, who, in dissent, sought “to call attention to the defects in the Court’s decision to place weight on foreign laws,” because “if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant.” In a separate dissent, Justice Antonin Scalia, in his inimitable style, stated that

the Prize for the Court’s Most Feeble Effort to fabricate ‘national consensus’ must go to the appeal (deservedly relegated to a footnote) to the views of…members of the so-called “world community,”…whose notions of justice are (thankfully) not always those of our people.

This might have seemed a tempest in a teapot. But three years later, Justice Anthony Kennedy, writing for the Court in Roper v. Simmons—which similarly held that execution of persons under the age of eighteen is unconstitutional because of a national consensus that it constitutes cruel and unusual punishment—effectively upped the ante by asserting that foreign viewpoints were indeed relevant. Justice Kennedy stated:

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty…. [At least since 1958], the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.”

Dissenting, Justice Scalia responded that “the basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand.” He went on to point out the innumerable ways in which the US legal system differs from those of most other nations, including England. This in turn prompted Justice Sandra…

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