International Law and Rehnquist-Era Reversals

Georgetown Law Journal, Jun 2006 by Amann, Diane Marie

In its waning Terms, the Rehnquist Court held, in Lawrence v. Texas, that due process bars criminal prosecution of same-sex intimacy and, in Atkins v. Virginia and Roper v. Simmons, that it is cruel and unusual to execute mentally retarded persons or juveniles.1 Each judgment overruled a precedent set earlier in the tenure of this Court's eponymous member.2 These reversals shared another trait as well, for in each case Justices consulted international law as an aid to construing the U.S. Constitution. This Article analyzes that phenomenon. It first sets forth three Rehnquist-era precedents that granted states leeway to prosecute in these areas. Then turning to the reversals of those precedents, the Article traces the role that international law played in Atkins, Lawrence, and Simmons. It next examines the backlash these consultations spawned-not just academic criticism, but also congressional calls to impeach judges who look to international law. Critics tended to pretermit that in looking to external norms the Court was following a jurisprudential tradition. After marking that tradition, this Article gives the interpretive practice qualified approval. It is time for Justices both to articulate when it is appropriate to look to external sources and to set forth a framework for consultation. At a minimum, foreign jurisprudence ought to shed the light of experience on issues like those posed in the cases before the Court; it must arise out of a legal culture that shares with the United States a commitment to fundamental rights; and the way in which the jurisprudence influenced the Court must be set forth in a reasoned explanation. Whether a majority of the Court will pursue such a path remains uncertain, however, as the Rehnquist era ends and that of the new Chief Justice, John G. Roberts, Jr., begins.

I. REHNQUIST-ERA PRECEDENTS

The Rehnquist Court made its debut on the first Monday of October 1986, days after the swearing-in of William Hubbs Rehnquist as Chief Justice of the United States and of Antonin Scalia to replace him as an Associate Justice of the U.S. Supreme Court.3 Rehnquist, who had endured a summer-long campaign against his elevation, was confirmed despite a record thirty-three Senate "no" votes.4 President Ronald Reagan hailed the transition as furthering '"the principle of judicial restraint'" and '"government by the people.'"5 Observers across the political spectrum predicted that Rehnquist would help to move the Court to the right, toward a position of resistance to pleas either for recognition of constitutional rights or for expansion of the scope of rights already recognized. These predictions held in large part true for many of the nineteen Terms that ensued before Rehnquist succumbed to thyroid cancer on September 3, 2005.6

By 1986 the position of resistance already had won Court favor in the area of criminal justice; indeed, a bellwether had been sounded three months before Rehnquist took over as Chief. In Bowers v. Hardwick,7 Justices were asked to turn back a bid for a declaratory judgment against a Georgia statute that made the act of sodomy a crime punishable by up to twenty years in prison.8 Five members, among them then-Associate Justice Rehnquist, acceded, in a judgment that focused on the substantive component of the Due Process Clause.9 "The issue presented," Justice Byron R. White's opinion for the Court reasoned, "is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time."10 The majority answered its question in the negative." A brief concurrence by Chief Justice Warren E. Burger underscored this conclusion. He found support for the majority's contention that "proscriptions against sodomy have very 'ancient roots'" in sources other than the domestic laws to which the majority pointed; in particular, he pointed to "Judeao-Christian moral and ethical standards," the Code of Justinian, and Blackstone's Commentaries.12 The Constitution did not forbid Georgia to make same-sex intimacy a crime, Burger wrote, for the reason that "[d]ecisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization."13

Rehnquist Court rulings respecting criminal justice likewise sustained states' requests for resistance to claims of rights. Rules designed to exclude tainted testimonial or physical evidence were relaxed, and proof of deliberate governmental action was entrenched as a prerequisite to constitutional remedy.14 Of particular note for present purposes are two decisions issued on the same day in 1989, each of which examined the degree to which the Eighth Amendment's ban on cruel and unusual punishments15 circumscribed governmental authority to impose the death penalty. One of these, Stanford v. Kentucky,16 concerned the execution of persons who were sixteen or seventeen years old at the time they committed murder; the other, Penry v. Lynaugh,17 concerned the execution of mentally retarded persons.