Opinion

Monday’s SCOTUS decision sickening

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Hans Bader
Senior Attorney, CEI
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      Hans Bader

      Hans Bader is Counsel for Special Projects at the Competitive Enterprise Institute. Coming to CEI in 2003, Hans's prior casework has included suits involving the First Amendment, federalism, and civil rights issues.

      He graduated from the University of Virginia with a B.A. in economics and history, and later earned his J.D. from Harvard Law School. Just before joining CEI, Hans was Senior Counsel at the Center for Individual Rights. He practiced education law for years, including a stint at the U.S. Department of Education. He is a contributor to OpenMarket.org.

The Supreme Court has just held that violent juveniles cannot be given a life sentence without the opportunity for parole, unless they succeed in killing their victim. Even torturers and rapists who attempt to commit murder cannot be denied the opportunity for release under the court’s decision Monday in Graham v. Florida.

Most states have long authorized life sentences without parole for vicious 17-year-olds who commit rape and attempted murder. But the court looked instead to “international opinion” to declare such sentences “cruel and unusual,” writing that “The United States adheres to a sentencing practice rejected the world over,” illustrating “the climate of international opinion” against life without parole.

The court’s opinion was joined in by all the liberal Supreme Court justices–including Obama’s appointee, Sonia Sotomayor–and authored by swing vote Anthony Kennedy. Conservative justices Alito, Thomas, and Scalia dissented.

Chief Justice Roberts agreed with the liberal majority only that the defendant in this particular case deserved a chance for parole. But he disagreed with its sweeping ruling that all violent juveniles must be given a chance for parole unless they succeeded in killing their victim. He cited the examples of nightmarishly evil people who will now be given an opportunity for parole thanks to the Supreme Court:

“But what about Milagro Cunningham, a 17-year-old who beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin in a remote landfill?” asked the Chief Justice. “Or Nathan Walker and Jakaris Taylor, the Florida juveniles who together with their friends gang-raped a woman and forced her to perform oral sex on her 12-year-old son?” These vicious predators will now be free to seek parole.

The court’s decision Monday illustrates that the Supreme Court is a liberal court, not a moderate or conservative court. The great majority of states–even “Blue States” like California–permit life without parole for violent juvenile torturers and rapists. The court ignored the wisdom of the sages, such as the ancient maxim that “he who is kind to the cruel is cruel to the kind.”

In relying on “international opinion” to decide the case, the Supreme Court ignored the pleas of civil libertarians and libertarian think tanks like the Cato Institute not to smuggle international standards into the interpretation of the American Constitution, since doing so is a dangerous precedent: international law and opinion are often hostile to important American civil liberties like free speech, freedom of the press, and freedom of religion; the right to self-defense against home intruders; and laws designed to secure those protections.

The libertarian Cato Institute, which frequently files amicus briefs in the Supreme Court seeking to promote civil liberties and privacy rights, filed an amicus brief in Monday’s case asking the court not to rely on “international norms,” since doing so would “undermine the democratic process and rule of law, casting considerable uncertainty over many U.S. laws.” (Disclosure: Competitive Enterprise Institute joined that brief.) Sadly, the court ignored that brief.

Courts should not rely on “international opinion” to decide cases, since it is vague and manipulable. So-called international law is applied selectively by lawyers and judges, who cite real or imagined ”international law” to push the ideological goals they support, while ignoring actual international court rulings they don’t like.

Left-wing lawyers take vague international treaties and interpret them as mandating liberals’ ideological wish lists, like restricting criticism of Islam and minority religions as “hate speech,” banning Mother’s Day as sexist, and mandating quota-based affirmative action. For example, the CEDAW equal-rights treaty has been construed by an international committee as requiring “redistribution of wealth,” “affirmative action,” “gender studies” in academia, government-sponsored “access to rapid and easy abortion,” “comparable worth,” and “the application of quotas and numerical goals and measurable targets aimed at increasing women’s political participation.” Never mind that most countries don’t even have affirmative action.

But they ignore foreign law and world opinion when it calls into question liberal policies in the United States. One classic example is the horror that most countries’ courts have for the American practice of letting virtually unguided juries award punitive damages. In most of the world, punitive damages are forbidden. But you will never see a liberal Supreme Court justice talk about “international law” or “international opinion” when it comes to punitive damages, which are sacrosanct in the eyes of many liberal judges.

Ultimately, even liberals may come to regret the reliance on “international opinion” by Monday’s Supreme Court decision, which sets a dangerous precedent for civil liberties.

In USA Today, liberal law professor Jonathan Turley earlier criticized the Obama administration for foolishly endorsing a “blasphemy” exception to free speech at the UN, in an effort to curry favor with Muslim countries: “Around the world, free speech is being sacrificed on the altar of religion. Whether defined as hate speech, discrimination or simple blasphemy, governments are declaring unlimited free speech as the enemy of freedom of religion. This growing movement has reached the United Nations, where religiously conservative countries received a boost in their campaign to pass an international blasphemy law. It came from the most unlikely of places: the United States.”

Turley says Western blasphemy cases have included the arrest of a Dutch cartoonist for depicting Christian and Muslim fundamentalists as zombies; the investigation of an Italian comedian for joking that in 20 years, the Pope will be in hell; the exclusion of a Dutch politician from Britain because he made a movie describing Islam’s holy book as “fascist”; and the prosecution of writers for calling Mohammed a “pedophile” because of his marriage to 6-year-old Aisha (which was consummated when she was 9).

Earlier, conservatives and civil libertarians criticized the Obama administration for endorsing restrictions on so-called “hate speech” at the United Nations in an effort to ingratiate itself with other countries. The administration is backing proposals to classify hate speech as a violation of international human rights law. Some left-wing lawyers are now likely to argue that these proposals constitute “customary international law” binding on the U.S., as a consensus interpretation of treaties the U.S. has already signed, like the CEDAW equal rights treaty. The U.S. courts are unlikely to accept such arguments in the near future, although if Obama manages to appoint enough left-wing judges, the chances of such arguments prevailing will increase.

In Canada, hate speech laws have been used to punish ministers for anti-gay sermons. In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, writing about the racial implications of the death penalty, and calling homosexuality immoral. Ironically, hate speech laws have often been used against minorities in the Third World, with prosecutors arguing that advocating the rights of minorities is an inflammatory form of racial separatism.

Hans Bader is Counsel for Special Projects at the Competitive Enterprise Institute. Coming to CEI in 2003, Hans’s prior casework has included suits involving the First Amendment, federalism, and civil rights issues.

  • murrayabraham

    And why shouldn’t the Supreme Court consider what is done elsewhere?
    All other modern democracies are less repressive and have lesser crime rates.
    The US has the highest incarceration rate in the world, which means that either Americans are the most criminal people on earth or that there is a problem in our justice system.
    I choose to believe the latter, and this decision is a step in the right direction. It has nothing to do with Liberal vs Conservative.

  • qofdisks

    Humanity is humanity the world over. Justice is justice the same the world over. Common values amongst human beings is a hallmark of human evolution. All persons require dignity, and human rights. Punitive actions are a dead end to evolving human beings. Prison does not extinguish evil, it only confines it. So what does it say about America that we now have the highest incarceration rate in the world? More prisons and more imprisonment coarsens our culture overall.
    Let the judges decide and let the juvenile monsters come to God if they can.