- The Washington Times - Saturday, March 12, 2005

When the Supreme Court nullified death-penalty statutes for 16- and 17-year-olds in 20 states in its 5-4 Roper v. Simmons decision of March 1, it appealed, among other things, to world opinion and to statutes the United States hasn’t agreed to. Meanwhile in so doing, it ignored the many Americans who think that sometimes, when juveniles commit capital offenses, they deserve death. The question all this prompts, in our view, is whether the time is drawing near for Congress to limit the jurisdiction of the Supreme Court.

If that seems extreme, consider how little constitutionality and U.S. law figured in the Roper v. Simmons case. The decision in Justice Anthony M. Kennedy’s majority opinion on juveniles and the death penalty rested primarily on “our society’s evolving standards of decency” as Justice Kennedy saw them. “[Eighteen] states — or 47 percent of states that permit capital punishment — now have legislation prohibiting the execution of offenders under 18,” Justice Kennedy posited, calling it a consensus. The Supreme Court decision overturned a 15-year-old Supreme Court ruling that the juvenile death-penalty statutes are constitutional.

It’s not just the faulty reasoning that is troubling; it’s the faulty law. Most prominently, Justice Kennedy proceeded to invoke international laws to which the United States doesn’t even subscribe. “It is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty,” Justice Kennedy wrote. He pointed to a treaty the United States hasn’t signed, the United Nations Convention on the Rights of the Child, and one it signed without agreeing to its juvenile death-penalty provisions, the International Covenant on Civil and Political Rights, to buttress the argument. World opinion, he wrote, “while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” He claimed a national consensus exists on the issue, pointing to the fewer than half of death-penalty states that disallow it.

This was too much for Justice Sandra Day O’Connor, who is normally an international-law enthusiast. “Because I do not believe that a genuine national consensus against the juvenile death penalty has yet developed,” she wrote in her dissent, “I can assign no such confirmatory role to the international consensus described by the court.” She’s right, of course: Some polls indicate that one-third of Americans support keeping the juvenile death penalty, which is one reason why more than half of the country’s death-penalty states allowed it.

It was also too much for Justice Antonin Scalia, who took exception to Justice Kennedy’s resort to the two treaties. “Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position,” he wrote in a dissent joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas. Justice Scalia also had caustic words for the supposed “consensus.” As he wrote: “Words have no meaning if the views of less than 50 percent of death penalty States can constitute a national consensus. Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time.”

It’s not hard to see why the justices were unhappy with the decision. American courts have used foreign law and international law in their decisions since their inception. But what they haven’t done is reason according to laws the United States hasn’t agreed to. That strain of thought is new, and it’s the product of a movement that favors international law as an end in itself.

As Yale’s Harold Koh has put it in the past, the point of the new thinking is “bringing international law home.” Justice Ruth Bader Ginsberg said in 2003 that she hoped America could discard its “Lone Ranger” approach to the Constitution. Justice Stephen Breyer, who has invoked the rulings of Zimbabwe and India in his opinions, said on ABC’s “This Week” in 2003 that Americans will need to figure out whether the Constitution “fits into the governing documents of other nations.” Justice O’Connor herself has a track record here. In 1997 she said that American judges and lawyers “sometimes seem a bit insular” and “forget that there are other legal systems in the world.”

But international law isn’t always desirable, and sometimes the United States rejects it. On Wednesday, the United States did just that when it withdrew from an agreement that gave a foreign entity control over, among other things, U.S. death penalty verdicts for foreign nationals. The agreement, an optional protocol to the Vienna Convention on Consular Relations, had frequently been used by death-penalty opponents to hand cases to a more congenial tribunal. In this case, the State Department reportedly withdrew after the International Court of Justice told the United States to hold new hearings for 51 Mexican nationals on death row.

If the United States is not a signatory to a law, there are usually good reasons for it. In any event, it is Congress’ prerogative, not the Supreme Court’s, to decide whether the United States will accede to a given treaty or body of international law. What happens when Supreme Court justices ignore that fact?

We ask the question because we may be close to the time when Congress must exercise its authority to vouchsafe the supremacy of U.S. law in the Supreme Court. Congress possesses the constitutional authority to limit the jurisdiction of the Supreme Court, so it’s worth examining precisely how it would do that. There’s no question that such authority exists. Thomas Jefferson regarded judicial supremacy, the doctrine of those who disagree, as “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” He worried of a judiciary “working like gravity by night and day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one.”

In the book “Coercing Virtue: The Worldwide Rule of Judges,” Robert Bork sees four possibilities to limit an overreaching judiciary. Two of these pertain to Congress. First, Congress could resort to Article III, Section 2 of the Constitution, which provides that “the Supreme Court shall have appellate Jurisdiction … with such Exceptions, and under such Regulations as the Congress shall make.” Another recourse would have Congress adopt a constitutional amendment “to permit the overruling of Supreme Court decisions by the full Congress or by the Senate.”

Mr. Bork’s other two remedies are the prerogatives of presidents and political movements as much as Congress. A third is to appoint only judges who respect the Constitution, which is an ongoing labor. The fourth is a campaign to persuade the court of the error of its ways. Justice Scalia’s dissents would seem to be a noble beginning of such a project.

These four remedies are at least a worthy starting point for a discussion on reining in the judiciary. Such a discussion is urgently needed today. Without it, the Supreme Court will continue on a reckless path of disregard for U.S. law.

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