Will Obama Nominee Put EU Law Over U.S. Law?

It’s become fashionable for some U.S. Supreme Court justices, in writing decisions, to rely upon the decisions of foreign courts and the opinions of the “international community” (however that is defined) as these jurists rule on cases of major constitutional importance.  

 For instance, in writing for the majority of the court in the 2002 Atkins v. Virginia case in 2002. Justice John Paul Stevens alluded to the opinion of “the world community,” which he divined to be adverse to the imposition of the death penalty for the mentally retarded. In this instance, the opinion of “the world community” apparently meant the opinion of the European Union, since Stevens cited for support an amicus brief filed by the EU.  

And so Daryl Atkins — who had robbed, kidnapped and murdered 21-year-old Airman 1st Class Eric Nesbitt — was spared the death penalty because a majority of the court agreed with the supposed opinion of “the world community” that it was a bad idea to execute someone with an IQ below 69.  

 Justice Antonin Scalia expressed disdain in his dissenting opinion, in which he awarded Stevens the “Prize for the Court’s Most Feeble Effort” to concoct a national consensus from opinion polls and the views of “the world community.”  Scalia noted, “We must never forget that it is a Constitution for the United States of America that we are expounding … Where there is not first a settled consensus among our own people, the views of other nations, however enlightened the justices of this court may think them to be, cannot be imposed upon Americans through the Constitution.”  

The “opinion of the world community” appeared again in the 2005 Roper v. Simmons decision, written by Justice Anthony Kennedy. Roper was another death-penalty case, this one dealing with the execution of a man who had committed a cold-blooded murder when he was 17 years old.  

Instead of analyzing the Constitution and the 8th Amendment, relying solely upon U.S. law and societal norms, Kennedy cited the laws of the United Kingdom and the African Charter on the Rights and Welfare of the Child in reaching his conclusion that people who commit murder while under the age of 18 aren’t eligible for the death penalty.  

And so Christopher Simmons — who had hogtied 46-year-old Shirley Crook, wrapped her head in duct tape and thrown her off a bridge to drown — was spared execution because he committed the heinous murder nine months before his 18th birthday, and a majority of the court thought it relevant that the African Charter on the Rights and Welfare of the Child forbade it.

It’s highly unlikely that the President nominated a constitutional “originalist” — someone along the lines of Justice Scalia. But in light of decisions like Atkins and Roper, is it too much to ask that the nominee interpret the Constitution exclusively according to American legal norms and precedent?  

 In his short time in office, unfortunately, President Obama has shown a tendency to nominate to high positions persons who champion the use of foreign law to interpret the Constitution.  

 Specifically, the President nominated Washington, D.C., attorney David Ogden and Yale Law School dean Harold Koh to the positions of deputy attorney general and State Department legal advisor, respectively. While both come highly qualified, both have demonstrated a tendency to promote legal norms that were not born from American custom and practice.  

 For example, in his 2004 brief to the Supreme Court in the Roper v. Simmons case, Ogden promoted the use of international law to interpret the 8th Amendment’s prohibition of “cruel and unusual punishment.” Ogden argued in his brief that the laws of foreign nations are directly relevant to interpreting the Constitution:  “Almost without exception, the other nations of the world have rejected capital punishment of those under 18, confirming that the juvenile death penalty is contrary to the 8th Amendment standards of decency.” In other words, since the “other nations of the world” disfavor capital punishment for juvenile killers, it necessarily follows that executing juvenile killers in the United States is contrary to the Constitution. As noted above, Justice Kennedy was happy to agree with Ogden’s argument. 

The President’s appointment of Harold Koh to the top legal position at the State Department has become mired in controversy due to Koh’s views on the standing of international law within the U.S. legal system. In a 2004 law review article, Koh promoted his view of “transnationalist jurisprudence” by advocating that American “domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law.” How U.S. law may be coordinated with foreign law without being subordinated goes unstated.  

The President’s appointments of Ogden and Koh do not bode well for those who believe that crucial questions requiring constitutional interpretation should be resolved solely by what the Constitution’s text originally meant, rather than how the world community would reinterpret it.  

Supreme Court decisions on controversial issues such as abortion, the death penalty and gun control should not be swayed by what the French think, or how a court in The Hague would rule on the issue, or by what the “Arab street” may demand. One thing that we should all be able to agree upon is that those issues should be debated and decided by the American people, their elected representatives in U.S. legislatures and, if need be, in American courtrooms.  

Nominating Supreme Court justices who desire to achieve judicially what the American people and their elected representatives would never permit to occur legislatively is a poor litmus test. Did Obama nominate a justice who will have as much “empathy” for victims like Eric Nesbitt and Shirley Crook as for killers like Daryl Atkins and Christopher Simmons?