Foreign Jurisprudence-To Cite or Not to Cite: Is That The Question or is It Much Ado About Nothing?

• Author: Traci Donovan
• Position: Associate, Jones Day, New York
• Pages: 761-786

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As a result of the Supreme Court's decision in Lawrence v. Texas,¹ and its jurisprudence in death penalty cases such as Stanford v. Kentucky,²Thompson v. Oklahoma,³ Atkins v. Virginia,⁴ and most recently, Roper v. Simmons,⁵ the Court has been accused of using foreign jurisprudence and opinion to interpret U.S. constitutional provisions. In Lawrence, the Court made reference to the European Court of Human Rights case, Dudgeon v. United Kingdom;⁶ in cases interpreting the Eighth Amendment's prohibition against cruel and unusual punishment, the Court made reference to the laws and opinions of other countries with respect to the application of the death penalty to juveniles and the mentally retarded.⁷ In fact, the Roper decision has been criticized for relying too heavily on foreign decisions and for not being grounded in conventional legal materials.⁸ It is argued that the Court uses foreign decisions as authority to support its decisions rather than for merely informational purposes.⁹

In Roper, the Supreme Court held that the Eighth Amendment prohibits the imposition of the death penalty on juvenile offenders.¹⁰ The Court noted that standards of decency have evolved to a point that the prohibition of cruel and unusual punishment includes the application of thePage 762 death penalty to minors.¹¹ This judgment is likely to further fuel the debate on whether and to what extent foreign jurisprudence or experience should be factored into the interpretation of constitutional provisions.¹² This Article argues that the Court's references to international opinion and jurisprudence were simply parenthetical departures in the overall discussion and were not used by the Court to reach its conclusions. If all references to foreign opinion and jurisprudence were removed from the opinions, the outcome would remain the same. This Article maintains that the Court's use of the "evolving standards of decency" test, a conventional method of constitutional analysis, has ensured that the decisions rely only on inward-looking factors as expressed by national consensus.¹³ It further argues that any references to outward-looking factors are incidental and are done only after a national consensus has been established. The Court has followed its decision in Thompson, where it first determined the point that must be exceeded before a national consensus is established.¹⁴

Part I of this Article introduces the current debate on the Court's use of foreign jurisprudence and experience in its decisions. Part II explains the gradual development of the evolving standards of decency test and illustrates the factors used to analyze whether standards of decency have evolved. Part III of this Article demonstrates how, through the development of this test, the Court has avoided using foreign jurisprudence and experience to arrive at its decisions by relying on factors that are specific to the United States.

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I The Debate

While academics have long debated the appropriateness of the Supreme Court's use of foreign law and experience,¹⁵ two Justices formally joined the discussion-a discussion that they, in large part, commenced.¹⁶ On January 13, 2005, American University hosted a discussion between Justices Breyer and Scalia on the relevance of foreign court decisions to the interpretation of American constitutional law.¹⁷ As an originalist, Justice Scalia adhered to his position that constitutional provisions should be interpreted in light of what specific terminology meant at the time it was created and adopted.¹⁸ Therefore, Scalia believes that looking abroad is not only irrelevant, but it is erroneous.¹⁹

According to his originalist understanding, the Bill of Rights was created for the purpose of preventing change.²⁰ However, does an originalist approach prevent change altogether? According to Scalia, if and when change must occur, the point of reference is the American experience only.²¹ His view is illuminated well in Printz v. United States,²²where the Supreme Court held that provisions of the Brady Gun Control Act that commandeered local law enforcement officials into enforcing the federal statute were unconstitutional.²³ Writing for the plurality, Justice Scalia categorically dismissed the use of comparative analysis with foreign federal systems:

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Justice Breyer's dissent would have us consider the benefits that other countries, and the European Union, believe they have derived from federal systems that are different from ours. We think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one.²⁴

Justice Breyer, on the other hand, believes that the "experience [of other countries' federal systems] may nonetheless cast an empirical light on the consequences of different solutions to a common legal problem."²⁵

Similarly, the Court has tackled its task of interpreting the prohibition against cruel and unusual punishment by referring to evolving standards of decency.²⁶ In part, the squabble between academics and the Justices is over whose standards of decency should be used. For Scalia, only the "standards of decency of American society" count or should be used, "not the standards of decency of other countries that don't have our background . . . [or] our moral views."²⁷ On the other hand, Justice Breyer's view is that foreign jurisprudence should be examined by judges and lawyers and is "food for thought."²⁸ While the discussion between the two Justices sheds light on the debate in general, it presents only a few facets of the dispute.

The current debate addresses a wide range of issues, including whether the Supreme Court should look to foreign jurisprudence when interpreting constitutional provisions,²⁹ and if so, to what extent;³⁰ how the CourtPage 765 decides which foreign materials should³¹ or should not be used;³² why such materials are used at all;³³ whether the use of foreign jurisprudence is "countermajoritarian"³⁴ or threatens U.S. sovereignty;³⁵ why foreignPage 766 jurisprudence should be used;³⁶ whether such use is a "new" practice or the Court's practice throughout its history;³⁷ and the differences about the meaning of the debate.³⁸ In fact, there is even a debate about what the debate between Breyer and Scalia actually is!³⁹

The breadth of this debate is immense, as it touches upon nearly every aspect of the appropriateness of the use of foreign law and experience and how it should be done at all. However, the debate is not comprehensive, for it fails to include a proper inquiry into the extent the Court's holdings would have changed, if at all, if international experience or jurisprudence were not mentioned.

II The Evolution of Evolving Standards of Decency

Modern interpretation of the Eighth Amendment's prohibition of cruel and unusual punishment springs primarily from Trop v. Dulles,⁴⁰ where the Supreme Court was asked to decide whether it was cruel and unusual punishment to revoke the citizenship of a war-time deserter.⁴¹ In analyzingPage 767 the issue, the Court stated that "[t]he [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,"⁴² because "[t]he provisions of the Constitution are not time-worn adages or hollow shibboleths. They are vital, living principles that authorize and limit governmental powers in our Nation."⁴³

The Trop Court did not set forth rules or a blueprint to determine what constitutes evolving standards,⁴⁴ but more recent Eighth Amendment jurisprudence has. These cases have shaped the evolving standards of decency test into a more precise method of establishing these standards. Thus, standards have evolved when it is shown that there is a "national consensus" as to what does or does not constitute cruel and unusual punishment.⁴⁵

In 1988, the Supreme Court held in Thompson v. Oklahoma⁴⁶ that the Eighth Amendment proscribes the application of the death penalty to offenders under the age of sixteen.⁴⁷ The Court found a national consensus by analyzing the trend of states legislatures⁴⁸ and the proclivity of juries to apply that punishment.⁴⁹ One year later in Penry v. Lynaugh, the Court held that the Eighth Amendment permitted the imposition of the death penalty to mentally retarded offenders.⁵⁰ The Court stated that evolving standards of decency must be reflected by a national consensus, which is found by looking at the "objective evidence of how our society views a particular punishment today."⁵¹ Again, the objective evidence used by the Court was legislation enacted by states and data on how juries sentenced the convicted.⁵²

Stanford v. Kentucky,⁵³ decided at the same time as Penry, clarified that the Court's independent judgment should be accorded less weight thanPage 768 evolving standards of decency.⁵⁴ The Court stated, "'Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent.'"⁵⁵ However, in Atkins v. Virginia,⁵⁶ the Court stated that although objective evidence is of great import,⁵⁷ where cases involve a consensus, the Justices' "own judgment 'brought to bear,' by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators."⁵⁸ Most importantly, the Court added that the number of states that permit or prohibit the death penalty as applied to certain offenders is not necessarily significant; instead, it is the "consistency of the direction of change" that is significant.⁵⁹

Today, the Court's evolving standards of decency test is applied in Eighth Amendment cases by...