The Nine [108]
Kennedy turned the question around: “Do we ever take the position that what we do here should influence what people think elsewhere?” Kennedy had spent much of the previous decade trying to influence “what people think” as a missionary for constitutional democracy and the rule of law. But like many other missionaries, Kennedy turned out to be as changed by his journeys as were the people he was trying to convert.
“You thought that Mr. Jefferson thought that what we did here had no bearing on the rest of the world?” Kennedy went on.
Layton said he couldn’t speak for Thomas Jefferson.
Ginsburg suggested the Declaration of Independence supplied the answer. “But did he not also say that to lead the world, we would have to show a ‘decent respect for the opinions of mankind’?”
All this talk about the international exchange of ideas was more than Scalia could take, so he cut it off with a wisecrack: “What did John Adams think of the French?” The audience laughed.
But Kennedy had made his position clear. The vote in conference was 5–4 to strike down the death penalty for juvenile offenders and to overrule Scalia’s fifteen-year-old opinion holding otherwise. Stevens, the senior justice in a majority that also included Souter, Ginsburg, and Breyer, wisely assigned the case to Kennedy, who had shown so much passion about the issue. His opinion turned out to be unlike any in the Court’s history. Kennedy began by finding “a national consensus against the death penalty for juveniles,” even though twenty states still allowed such executions to take place. But the heart of the opinion—and certainly the most unusual part—was Kennedy’s reliance on international evidence to reach his conclusion.
“Our determination that the death penalty is disproportionate punishment for offenders under 18 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,” he wrote. “This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility.” The evidence from foreign countries may not have been “controlling,” but it was obviously highly important to Kennedy and his colleagues in the majority. He noted that the United States had only dismal company in countries that had executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. But since then, even those countries had renounced the practice.
“In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty,” Kennedy wrote, adding, “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” Kennedy ended his opinion in Roper with one of his orotund, and not entirely comprehensible, perorations: “Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”
It was left to Scalia, once again, to ask what Kennedy’s embrace of foreign sources really meant. “Though the views of our own citizens are essentially irrelevant to the Court’s decision today,” he noted with characteristic asperity, “the views of other countries and the so-called international community take center stage.” But Kennedy had not put forth any sort of standard by which to determine when the United States should follow the rest of the world and when it should not. Scalia went through a long list of areas where American law differed from others—reliance on juries, the exclusionary rule, separation of church and state—and he returned, as ever, to his bête noire: “And let us not forget the Court’s abortion jurisprudence, which makes