Today we have the next installment of "The Supreme Court Follies" courtesy of this article by Texas Senator John Cornyn, via the ever-irascible Kim du Toit. Here Senator Cornyn is addressing the Supreme Court's distressing new propensity to refer to the laws and precedents of other nations to determine their interpretation of the laws and Constitution of the United States, in many cases overriding previous rulings by the Court:
For example, in Penry v. Lynaugh (1989), the U.S. Supreme Court held that a state may impose the death penalty on convicted criminals regardless of their IQ, if the state so chooses — but in Atkins v. Virginia (2002), the Court reversed its earlier ruling in part because the Court was concerned about "the world community" and specifically the views of the European Union.
Similarly, in Bowers v. Hardwick (1986), the Court held that each state retains the discretion to determine whether certain kinds of conduct, long considered immoral under our longstanding legal traditions, should or should not remain illegal — but in Lawrence v. Texas (2003), the Court again reversed itself, this time in part because it was concerned about the European Court of Human Rights and the European Convention on Human Rights.
Likewise, in Stanford v. Kentucky (1989), the Court concluded that 16- and 17-year-olds may be subject to the death penalty, if a state chooses to do so — but just last month in Roper v. Simmons, the Court reversed itself yet again, in part because of treaties the U.S. has never even ratified, and because of the views of foreign countries not shared by the people of Missouri and numerous other states.
Still other opinions from Supreme Court justices have relied upon the legal judgments of foreign courts all across the globe, such as Jamaica and Zimbabwe.
If the laws of other nations are sound and worthy of implementation in this country, it's the purview of the United States Congress to draft and then pass those laws, subject to signature of the President. Only then can the Supreme Court take such laws into consideration. Otherwise, it should be as if those laws do not exist. If they are not a part of the law of this country, the Supreme Court has no business even considering them in its rulings. Senator Cornyn has come up with a plan that should at least help with this issue:
Last week, I introduced Senate Resolution 92, similar to a resolution introduced by Rep. Tom Feeney (R., Fla.) last month. It expresses the sense of the Senate that judicial determinations regarding the meaning of our Constitution should not be based on the judgments, laws, or pronouncements of foreign institutions, except where such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of our Constitution.
It's not binding legislation but it should send a message to the members of the Court that a lot of people are getting fed up with this behavior. If you ask me, any Supreme Court Justice who cites foreign law or precedent as a basis for their ruling is in violation of their oath of office and should be removed. After thinking about this further, it may be that a Constitutional amendment is required that will force Justices to confine the bases of their rulings to the laws and Constitution of this country and no other.
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