Monday, July 2, 2018

Justice Kennedy and the "Opinions of Mankind"

In recent U.S. Supreme Court nomination hearings, Senators have often grilled the nominees about their perspectives on the relevance of international law to domestic adjudication.  Most recently, Trump nominee Neil Gorsuch testified that such references are "improper" as a general matter when interpreting U.S. constitutional law.  Chief Justice Roberts likewise decried the practice, expressing concern that citations to international law might simply support judges' biases.  The idea that international law is irrelevant in constitutional cases was also a conservative article of faith for Justice Scalia, who raised the issue frequently in dissent.  We can expect any new Trump nominee to be confronted with questions about this issue during the confirmation process.  Hint:  Justice Gorsuch gave the answer that most Republican members of Congress want to hear.

But to his credit, Justice Kennedy understood this issue with a greater level of nuance, and repeatedly demonstrated an appreciation for the role of international and comparative law in the Supreme Court's constitutional decisionmaking.  For example, in Roper v. Simmons, where Justice Kennedy wrote the majority opinion disallowing capital punishment for juveniles, he examined both international and comparative law, concluding that "[t]he opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."  Still, having contributed to a firestorm over foreign and international citation with his opinions in Lawrence v. TexasAtkins v. Virginia, and others, Justice Kennedy then seemed to back away from the practice.  His most recent opinions in both the death penalty and fundamental rights arenas did not cite international or foreign law, even though advocates filed amicus briefs fully addressing the subject.

Going forward, many speculate that the Supreme Court will shift even further to the right, with Chief Justice Roberts as the new "swing" vote.  If that occurs, and the dominant position of the Court is that international and foreign law are off-limits, our domestic jurisprudence will become that much more impoverished.  The Declaration of Independence famously asserts our national obligation to pay "a decent respect to the opinions of mankind."  In a series of significant constitutional opinions, fully grounded in domestic law, Justice Kennedy demonstrated that he understood the importance of that obligation.  There is a danger that his departure from the Court will move international and comparative law completely into the margins of domestic jurisprudential discourse, a development that might well have surprised and alarmed our country's founders.

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