Courting Trouble


Courting Trouble

Mar 9th, 2005 3 min read
Edwin J. Feulner, Ph.D.


Edwin J. Feulner is the founder and former president of The Heritage Foundation.

It's time for some changes at the Supreme Court. How about forcing all justices to retire at age 70? Even better, let's dissolve the Court and let the Senate serve as the court of last resort.

Too extreme, you say? But these proposals would merely bring us into line with our allies in Canada and Britain. The Canadians have a mandatory retirement age for their judges, and in Britain the House of Lords serves as the nation's highest court.

Oh, sure, these changes would be unconstitutional. But turnabout is fair play. The Supreme Court no longer restricts itself to following American law and the American Constitution, so why shouldn't we make arbitrary, unconstitutional changes to the Court?

The latest example of judicial overreach came in this month's Roper v. Simmons decision. By a 5-4 margin, the court ruled that states may not execute anyone who was younger than 18 at the time of his crime. No matter where you stand on the death penalty, as an American you should be troubled by the court's rationale in this case.

In the majority decision, Justice Anthony Kennedy wrote that there's now a "national consensus" against the use of the death penalty for juveniles. But his conclusion is based on what the dissent described as "the flimsiest grounds." Indeed, a majority of death penalty states authorize the punishment for 16- and 17-year olds who commit certain premeditated and aggravated murders. So much for a supposed national consensus.

But Kennedy went even further in his decision, noting the majority "finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty."

Most Americans would say, "So what?" It doesn't matter what other countries do or what laws they pass. Americans are subject only to our laws and our Constitution.

Still, Kennedy seems proud of his reliance on international law. "The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation for the Court's determination that the penalty is disproportionate punishment for offenders under 18," he wrote.

Sadly, Kennedy wasn't alone. In her dissenting opinion, Justice Sandra Day O'Connor noted that she also would be willing to cite international law if doing so suited her purpose. "The existence of an inter­national consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus," she wrote.

Justice Antonin Scalia's dissent was the only opinion that made much sense. "I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitu­tion, should be determined by the subjective views of five Members of this Court and like-minded foreigners," he wrote, in an opinion joined by Justice Clarence Thomas and Chief Justice William Rehnquist.

These three men are, apparently, the only true conservatives on the court, i.e., they want to conserve the traditional idea that American courts must rely on American laws when making their decisions. Indeed, the Supremacy Clause of our Constitution makes clear that the only supreme law of our land is the U.S. Constitution, U.S. laws in conformity with the Constitution, and duly ratified treaties -- not the decisions of foreign courts.

Luckily, the internationalization trend hasn't yet spread to our executive branch.

President Bush has made it clear the U.S. won't join the International Criminal Court in The Hague. Other countries are pressing the U.S. to join, because doing so would tie us into the "international law" some of our Supreme Court justices seem to respect so much.

Of course, Americans would hardly recognize the ICC as a court. For example, defendants may face double jeopardy, hearsay evidence, absentee trials and other things not permitted in American courts. Should we abandon these protections just because they are not part of international law?

The United States has an excellent Constitution and plenty of homegrown laws. We don't need to import any from foreign lands. Our judges must confine themselves to interpreting our own laws, instead of subjecting us to foreign laws. Or is it time to get a few new judges who will?

Ed Feulner is president of the Heritage Foundation.

More on This Issue