March 1, 2005

I HAVEN’T READ ROPER V. SIMMONS YET, but Orin Kerr has: “I was disappointed by Justice Kennedy’s majority opinion. There just isn’t much there to justify overruling a 16-year-old precedent and striking down 18 state laws. I’m not sure about the juvenile death penalty as a matter of policy, but I found Justice Scalia’s powerful dissent pretty tough to refute as a matter of constitutional law.”

I don’t think that looking to international practice is as horrid as some critics have said, however: More than probably any other provision in the Constitution, the prohibition on “cruel and unusual punishment” would seem to invite that. I note, however, that if reference to international standards becomes common, the Supreme Court’s abortion jurisprudence is likely to become much, much less protective of abortion rights, as the United States is rather far from the median practice in that regard.

UPDATE: On the Court’s use of international law, Julian Ku at Opinio Juris observes: “I am not sad to see the juvenile death penalty go away, but I do think it is odd that treaties to which the U.S. government specifically reserved the question at issue (the international legality of the juvenile death penalty) are being used as evidence of what the U.S. Constitution requires.”

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