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U.S. Supreme Court Clarifies Limits on Its Use of International Law


by Jim Kelly

Wednesday, May 19, 2010

 It is unfortunate that, in the recently decided case of Graham v. Florida, the Supreme Court of the United States refers to international opinion against the sentencing of juveniles to life without parole as support for the Court's decision. Nevertheless, it is important to note that, in the Court's majority opinion, Justice Anthony Kennedy clarifies and significantly restricts the Court's use of international opinion, at least in cases where the Court is involved in interpreting the Eighth Amendment's prohibition against cruel and unusual punishment. The Court explained that the judgments of other nations and the international community are not dispositive and are used only for support for the Court's own independent conclusion on the matter. No doubt, this evolution in the Court's approach disappoints those transnational progressives who had petitioned the Court to use international laws and practices to guide the Court's Eighth Amendment analysis, rather than to merely support a decision of the Court based exclusively on domestic laws and practices.

The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The provision is applicable to the States through the Fourteenth Amendment.

As the Court explained in Roper v. Simmons, 543 U.S. 551 (2005), a case deciding whether it was cruel and unusual punishment to sentence a juvenile offender to death:

The prohibition against "cruel and unusual punishments," like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework we have established the propriety and affirmed the necessity of referring to "the evolving standards of decency that mark the progress of a maturing society" to determine which punishments are so disproportionate as to be cruel and unusual. Trop v. Dulles, 356 U.S. 86, 100-101 (1958) (plurality opinion).

In the Roper decision, written by Justice Kennedy, the Court went on to explain that, though the rejection of the juvenile death penalty by almost every nation in the world did not control the Court's interpretation of the Eighth Amendment, 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.'" (emphasis added). The Court then went on to examine the practices of nations and international covenants that rejected the sentencing of juvenile offenders to death. After this analysis, the Court decided that: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."

Thus, in Roper, during the course of interpreting the Eighth Amendment, the members of the majority had looked to international practices and authorities for confirmation of their own conclusions, which, collectively, formed the basis for the Court's opinion. This was a much more robust use of international law than would have been the case had the members of the majority interpreted the Eighth Amendment based on U.S. domestic death sentencing laws and practices, reached a conclusion as to the constitutionality of sentencing juvenile offenders to death, and then cited international practices and authorities as support for the Court's own independent conclusion.

During the years following the Roper decision, many individuals, including lawyers, politicians, commentators, and ordinary citizens, harshly criticized the fact that the members of the majority had relied on international practices and authorities to interpret a provision of the United States Constitution. During those years, transnational progressives who endorsed the Court's approach looked for another opportunity for the Court to use international law as evidence when interpreting a provision of the U.S. Constitution or, even better, as controlling authority when interpreting such a provision. Meanwhile, it was possible that, to diffuse any further misunderstanding of the Court's intent in Roper, Justice Kennedy was hoping for an opportunity to clarify and limit its use of international laws and practices in interpreting the U.S. Constitution. Finally, conservatives were looking for an opportunity to encourage the Court to pare back, or even reverse, what they viewed as a disturbing trend toward the globalization of American jurisprudence.

These groups got their wishes in the form of the case of Graham v. Sullivan, which the Court decided on May 17, 2010. In its decision, the Court ruled that juveniles who commit crimes in which no one is killed may not be sentenced to life in prison without the possibility of parole. Five justices, in an opinion written by Justice Kennedy, agreed that the Eighth Amendment's ban on cruel and unusual punishment forbids such sentences as a categorical matter. After reaching that conclusion, the Court cited "the overwhelming weight of international opinion" against life without parole for non-homicide offenses committed by juveniles as support for its "independent conclusion" on that question.

Thus, the Court made it clear that, in principle, the members of the majority did not consider international opinion as evidence to be used during the course of interpreting the dictates of the Eighth Amendment. In the Court's words:

The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world's nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court's rationale has respected reasoning to support it.

As expressed by Justice Clarence Thomas in his dissenting opinion, though the conclusions drawn from the Court's analysis of state sentencing laws and practices were questionable, in theory, it was those laws and practices alone which formed the basis for interpreting the Eighth Amendment's application in the case. Thus, by limiting the role of international law to one that merely provides support for its own independent decision, the Court confirms Justice Thomas' observation that "past [Court] opinions explain at length why such factors are irrelevant to the meaning of our Constitution or the Court's discernment of any longstanding tradition in this Nation."

As it relates to the use of international law, there are three important outcomes from the Court's decision in Graham.

First, the Court has made it clear that, contrary to the somewhat muddled and more substantive reliance on international law in Roper, in interpreting the Eighth Amendment, Justices are only permitted to consider domestic laws and practices and may only look to international laws and practices to support the Court's own independent conclusion.

Second, the Court completely rejected the argument made by transnational progressives in an amicus curiae brief filed by Amnesty International and others that "the consistency and uniformity of international law and opinion against the challenged sentence should weigh heavily in this Court's determination that the juvenile life sentence without parole is inconsistent with the Eighth Amendment's prohibition of cruel and unusual punishments."

Third, by reducing the role of international law to that of after-the-fact support for an independent decision of the Court based solely on domestic law and practices, the Court appeared to adopt the argument contained in an amicus curiae brief filed by conservative groups that, in deciding the case, the Court not consider "the non-binding provisions of international human rights treaties or an insufficiently definite international norm regarding the sentencing of juveniles to life without parole."

Though, at first blush, some will criticize the Court for referring to international law at all in deciding Graham v. Florida, a closer examination of the decision reveals that the Court has taken a significant step toward minimizing the role of international law and policies in the interpretation of the U.S. Constitution. In light of globalization, the Court's past foray into the citation of international law and the regular exposure of U.S. Supreme Court Justices to the liberal arguments of transnational progressives, Western European jurists and academics, and non-governmental organizations, conservatives can take solace in the Court's more carefully calibrated and circumspect approach to the use of international law. Though liberal Justices on the Court who are influenced by international opinion may engage in an analysis of domestic laws and practices in a manner that guarantees an outcome consistent with international laws and practices, the Court's professed prohibition against the use of international law as an interpretative tool will help expose any such disingenuous practices.

Jim Kelly is the President of Solidarity Center for Law and Justice, P.C., a public interest civil and human rights law firm based in Atlanta, Georgia. The opinions expressed herein are his own.