High court increasingly looking abroad for justification of desired results

America wants no foreign rulers, explaining our reluctance to adopt the metric system. (Get it?) Perhaps, though, proponents of kilometers and milliliters should appeal to the Supreme Court, which lately seems inclined to find an argument in favor of mensuration hegemony appealing.

Right off the bat, let me apologize for using the word “hegemony,” which has in the last few years been co-opted by the left to prissily deride what it sees as the aim of conservatism. I promise to return it when I’m done, but it is the most apt description of the ideal aspired to not by the American right, but perhaps by the high court.

In announcing the reversal last year of a 13-year-old precedent with regard to the execution of mentally retarded convicts, Mr. Justice Stevens discovered a “consensus” among our state legislatures and professionals and in our society, even if he missed the one codified by the voters of Virginia. Not one single state passed a law in those 13 years providing for the execution of the mentally retarded, he said, and he aimed to keep it that way.

Importantly, though, Stevens also noted that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” He was drawing on a previous majority opinion of his – should that be allowed? – striking down capital punishment of convicts who committed otherwise capital crimes while under a certain age, wherein he noted that “juvenile executions are also prohibited in the Soviet Union,” among other places.

To be at least a little fair, neither decision said it expressly relied on foreign jurisprudence. To stop executions of murderers under 16, Stevens noted, correctly, “complete or near unanimity among all 50 States and the District of Columbia in treating a person under 16 as a minor for several important purposes.” To deny citizens of Virginia their right to vote up or down on capital punishment of the mentally retarded, Stevens ticked off 17 states that had acted in one way or another to prohibit the practice.

And like a pinch to grow an inch, he also noted that one house of the Virginia legislature had passed a bill outlawing the execution of the mentally retarded. For a Justice apparently so querulous about the Court dispensing with the right to vote – he chastised the Bush v. Gore majority for “effectively order[ing] the disenfranchisement of an unknown number of voters whose ballots reveal their intent” – Stevens, in kind with most liberals of the Roe v. Wade generation, seems perfectly willing to stop counting votes when his side is ahead.

But a pattern is emerging, in the jurisprudence of what amounts to “cruel and unusual” and, alarmingly, elsewhere. Having incorrectly concluded that the Eighth Amendment requires the Supreme Court to take the pulse of the country – which, it should be noted, tends to express its will just fine via elections and lawmaking and such – a footnote here and an observation there to the effect that “all the cool countries are doing it” might be expected. In the recent Lawrence sodomy case, though, an “emerging awareness” of what a state should and shouldn’t do was used to find a law had no rational relationship to a legitimate state purpose – a relationship that existed as recently as 17 years previously, when the Court said it was “quite unprepared” to find a right to sodomy in the Constitution in Bowers v. Hardwick.

“To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere,” the majority said, citing the European Court of Human Rights and “other nations, too.” “The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries,” the Court said. “There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.”

Ms. Justice Ginsburg, speaking August 2 to the unfortunately-named American Constitution Society, a group of liberal lawyers with Federalist Society envy, said “our island or lone ranger mentality is beginning to change.” Justices “are becoming more open to comparative and international law perspectives,” she announced. Which is fortunate, in that Ginsburg cited the International Convention on the Elimination of All Forms of Racial Discrimination in her opinion concurring with the race-based admissions practices of the University of Michigan this term.

Stevens and Ginsburg are not alone in leaning on other countries’ practices to rationalize a desired result. Mr. Justice Breyer wrote last year that he would have granted review to a Florida petition arguing that keeping an inmate on death row for 27 years is cruel and unusual under the Eighth Amendment. “Courts of other nations have found that delays of 15 years or less can render capital punishment degrading, shocking, or cruel,” he said. “Consistent with these determinations, the Supreme Court of Canada recently held that the potential for lengthy incarceration before execution is ‘a relevant consideration’ when determining whether extradition to the United States violates principles of ‘fundamental justice.’”

In that the Court seems to be having trouble figuring out what the Supreme Court of the United States was getting at in decisions rendered 13 and 17 years previously, I am not very comfortable with a citation of Supreme Court of Canada precedent.

Accountable as they are to the electorate, legislatures should feel free to look to how other countries and states are handling things. The current Court is increasingly revealing itself to be unwilling to allow legislatures to do that. “Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior,” Mr. Justice Scalia wrote in his Lawrence dissent. “Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct.”

America wants no foreign rulers – but the Supreme Court is increasingly acceding to the lead of nations whose laws the Justices wish were enacted here.