The Nine [106]
But Scalia shot back with even greater directness: “Do not believe it…. This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.” True to Scalia’s prediction, just five months later, with heavy reliance on the Lawrence precedent, the Supreme Judicial Court of Massachusetts held that gay people must be allowed to marry, too.
By that point, Kennedy had decided to press forward on an equally controversial issue—the death penalty.
Although influenced by his summers in Salzburg, Kennedy wasn’t even the most ardent internationalist on the Court. Breyer was.
In the way that actors once sought the perfect mid-Atlantic accent, Breyer found the perfect mid-Atlantic life. After graduating from Stanford, he won a Marshall Scholarship to study at Oxford. He returned to the States for Harvard Law School, then moved to Washington to serve as a law clerk to Justice Arthur J. Goldberg. There he met a young Englishwoman named Joanna Hare, who was then an assistant in the Washington office of the London Sunday Times. She came from an aristocratic (and wealthy) British family; her father was John Hare, 1st Viscount Blakenham, a British peer and statesman who served as a leader of the Tory Party in the 1950s and 1960s. The couple married in England, and Joanna Breyer later became a psychologist, treating young patients and their families at the Dana-Farber Cancer Institute in Boston. ( Justice Breyer was also fluent in French, a fact that, given the relationship between the Bush administration and France, he did little to advertise.)
At Harvard Law School, on the First Circuit Court of Appeals, where he served from 1980 to 1994, and on the Supreme Court, Breyer eagerly sought the friendship of his counterparts in other countries. He was the first justice in modern times to invoke foreign law as an aid to interpreting the American Constitution. He was cautious at first. In 1999, the Court refused to hear the appeal of a prisoner who argued that spending more than two decades on death row amounted to cruel and unusual punishment, in violation of the Eighth Amendment. Breyer wrote a brief dissent from the denial of certiorari, which was the kind of opinion that had little significance compared with, say, a majority opinion of the Court; such writing was a traditional way for justices to try out new ideas. So in his dissent in Knight v. Florida, Breyer quoted legal opinions from Jamaica, India, Zimbabwe, and the European Court of Human Rights to observe that “a growing number of courts outside the United States…have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel.” Breyer carefully noted that these views could not bind American courts, but he thought their observations worthy of note. Still, even this cautious invocation of foreign law drew a swift rejoinder from Clarence Thomas, who said in a brief opinion that the Supreme Court should never “impose foreign moods, fads, or fashions on Americans.” With that brief exchange, the battle was on.
It was Kennedy who took the concept to the next level. The issue was one that mattered a great deal to his foreign colleagues. On October 13, 2004, the Court heard argument on whether or not states could execute minors—that is, murderers who committed their crimes before they turned eighteen.
The issue was especially contentious because, as with Lawrence, the Court had considered it just a few years earlier. In 1989, Scalia had written in Stanford v. Kentucky that states could execute sixteen-and seventeen-year-old offenders. But in 2003, the Missouri Supreme Court had ruled in Roper v. Simmons that changes in the law since Stanford meant the Constitution now forbade the execution of juvenile offenders.
The emotional temperature of the issues