Tucson Urban League CEO/President Finance and Accounting Charles E. Gillman Company Accounting Specialist Administrative & Professional Jorgensen Brooks Group Counselor Sales and Marketing Everready Glass Sales Reps Trades/Construction RANCHO RESORT MAINTANANCE POSITION Mechanical Komatsu Equipment Co Resident Field Mechanic WashingtonKennedy defends references to foreign law in opinionsThe Associated Press
Tucson, Arizona | Published: 02.22.2008
WASHINGTON — Just who was Justice Anthony Kennedy calling out when he fired back at critics of the Supreme Court's use of international law in its opinions?
"There was kind of a 'know-nothing' aspect to the debate, it seems to me," Kennedy said, recounting the hue and cry that followed his opinion outlawing the execution of people who were not yet 18 when they killed. In the 5-4 ruling, Kennedy invoked the practice of other countries in support of his position.
Only a few countries continue to allow the execution of juveniles. "This confirms our judgment" that the death penalty for those under 18 violates the Eighth Amendment, Kennedy said Wednesday night at the Meridian International Center in Washington.
But he said, "We were very clear to say we reach this as a matter of interpretation of our own Constitution."
Kennedy did not name names, but one of his most vocal critics was his colleague, Justice Antonin Scalia, whose dissenting opinion went on at length about the folly of citing foreign law.
"Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five members of this court and like-minded foreigners, I dissent," Scalia wrote.
"The court's parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. 'Acknowledgment' of foreign approval has no place in the legal opinion of this court unless it is part of the basis for the court's judgment, which is surely what it parades as today," Scalia said.
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The five opinions the justices issued Wednesday had just four dissenting votes among them, and no opinion was closer than 7-2.
That relative harmony is a far cry from the 24 5-4 decisions of last term, most of them along ideological lines.
Yet the two terms had similar starts.
At this point a year ago, the court had handed down 17 decisions, of which 4 were decided by a single vote.
Of the 16 cases decided so far this term, just one was by a 5-4 vote. In two others, though, with one justice sitting out, the court was 5-3 and 4-4.
The most contentious cases are still to come, including deciding the legal rights of foreign terror suspects held at Guantanamo Bay, Cuba, gun ownership rights under the Second Amendment and the use of lethal injection in executions.
Kennedy, who dissented twice all of last term and was in the majority of every 5-4 outcome, already has been in dissent two times this term.
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Most lawyers who have argued cases at the court will tell you that cracking wise is risky and that jokes are more likely to fall flat than score points.
But every now and again, the resort to humor works.
Consider this exchange — in a case over alleged retaliation against someone who complains about racial discrimination — between a skeptical Scalia and his one-time law clerk, Solicitor General Paul Clement:
Scalia wanted to know when "the bad old days ended," meaning when did the court start limiting workplace discrimination suits unless the law explicitly granted a right to sue.
"The bad old days ended when you got on the Court, Mr. Justice Scalia," Clement said to laughter.
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Rancor inside the Supreme Court? Not according to Justice Stephen Breyer, who said Thursday night that all is well among the justices, despite the fact that last term he was "not a completely, totally happy camper."
Breyer appeared at the Sixth & I Historic Synagogue in a discussion in front of an audience with Jeffrey Rosen, legal affairs editor of The New Republic.
"Last year was a difficult year," Breyer acknowledged, with more than a third of the court's docket, 24 cases, decided by 5-4 votes. Of those, 20 fell along conservative-liberal fault lines.
The court limited abortion rights, restricted school integration programs and gave freer rein to political advertising in a 2006-07 term that saw the emergence of a solid conservative majority.
Breyer, a member of the court's liberal wing and an appointee of President Clinton in 1994, said that the inside story of the court is that "there isn't that much of an inside story" and that one of the unwritten rules among the brethren is that "tomorrow is another day, no carry-over ... no resentments."
One of the highlights of last term was Breyer's passionate defense from the bench as he dissented from the court's decision striking down voluntary integration plans in Louisville, Ky., and Seattle.
Of that, Breyer said Thursday night that he thought the ruling represented "a retreat" from a 2003 decision in which the court narrowly approved the University of Michigan law school's affirmative action admissions program.
He was philosophical about the outcome, saying, "We live in a world where these issues are not so easy."
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