How Often Does the U.S. Supreme Court Apply International Law?

Full Question:

How many time the US. Supreme Court use International Law in Constitutional Cases
12/07/2010   |   Category: Courts   |   State: Maryland   |   #23783

Answer:

There is no way to determine the precise number without a review of all cases in the court’s history. The application on international law has become more prominent and controversial due to at justice Kennedy and his usage of international law in his decisions. Kennedy is the "swing-vote," of the court and perhaps the lone justice who may determine which direction the nation goes on these sure to be 5-4 ruling issues facing the court.Generally, the justices are only permitted to consider domestic laws and practices and may only look to international laws and practices to support the Court's own independent conclusion.

Most notable in Kennedy's usage of international law in his jurisprudence, was the March 1, 2005 decision in the Roper vs. Simmons case. In Roper vs. Simmons, the court in a 5-4 decision, ruled that it was unconstitutional for a minor to be sentenced to capital punishment for a crime. In the case, Christopher Simmons, who was 17, plotted and murdered Shirley Cook with the help of two younger cohorts. The State of Mississippi convicted Simmons and sentenced him to death.

The controversy surrounding the court's decision arose from Kennedy's citing of international consensus on the topic of juvenile execution. He asserted that between 1990 and the time of the case, "only seven countries other than the United States had executed juvenile offenders ... : Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China." Justice Kennedy noted that since 1990 each of those countries had either abolished the death penalty for juveniles or made public disavowal of the practice, and that the United States stood alone in allowing execution of juvenile offenders. The Court also noted that only the United States and Somalia had not ratified Article 37 of the United Nations Convention on the Rights of the Child (September 2, 1990), which expressly prohibits capital punishment for crimes committed by juveniles.

Such use of international incited much criticism towards Kennedy and the Court, especially from onservative members of Congress. Rep. Todd Tiahrt, R-Kan., stated that invoking international law went "beyond the rule of law." Many other Congressional leaders criticized the usage of international precedent as well, asserting that the court was to measure law against the Constitution of the United States and nothing else.

For further discussion, please see:

http://legalhistoryblog.blogspot.com/2010/08/us-supreme-court-and-international-law.html
http://blogs.law.yale.edu/blogs/reference/archive/tags/U.S.+Supreme+Court/international+law/default.aspx
http://www.globalgovernancewatch.org/spotlight_on_sovereignty/us-supreme-court-clarifies-limits-on-its-use-of-international-law
http://www.highbeam.com/doc/1P1-93067648.html
https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=24+Berkeley+J.+Int'l+L.+273&srctype=smi&srcid=3B15&key=a59cc022b3014ed94b4e09dac07ef7c8
http://www.supremecourt.gov/opinions/opinions.aspx