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CHAPTER ONE The U.S. Supreme Court’s Use of Comparative Law in the Construction of Constitutional Rights DAVID M. O’BRIEN In recent years, national high courts’ use of comparative judicial opinions and law in the construction of individual rights has commanded greater attention. That is in no small part due to the increasing use of comparative legal analysis in rulings handed down by, for instance, the Supreme Court of Canada;1 constitutional courts in western, central, and eastern Europe,2 along with transnational courts like the ECtHR; as well as the Supreme Court of Israel;3 and the Constitutional Court of the Republic of South Africa (which is required by its constitution to consider comparative and international law),4 among other high courts. Court watchers and scholars have argued that a new paradigm for the construction of constitutional rights is emerging, based on and promoting the rise of “world constitutionalism.”5 Indeed, in the 1990s and 2000s, the number of citations to foreign legal sources increased in briefs filed and oral arguments before the Supreme Court of the United States.6 At the same time, there are those who lament courts’ increasing reliance on comparative constitutional law in constructing constitutional rights.7 The Supreme Court of the United States has been drawn into, rather than played a leading role in, the debate about the use of comparative law in the construction of constitutional rights. Foreign jurists have criticized the Court for its reluctance to engage in such an analysis.8 Members of the Court are sharply divided on the matter, both in their off-the-bench comments and in their opinions. Justices Ruth Bader Ginsburg and Stephen Breyer 7 8 GLOBALIZING JUSTICE have been the most outspoken in their embrace of comparative legal analysis when “interpreting constitutions and enforcing human rights.”9 By contrast, Justice Antonin Scalia has spoken out against the use of such sources. This is because he is a self-described “originalist”10 with regard to constitutional interpretation and generally deems foreign materials irrelevant, because in his view such sources may encourage counter-majoritarian judicial decisions. Members of the Rehnquist Court (1986-2005) have at times rather hotly contested the use of comparative judicial opinions and legal practices. The disagreement is evident in decisions ranging from the Court’s role in policing the boundaries of federalism to the constitutionality of the death penalty and Lawrence v. Texas,11 which struck down a state law criminalizing homosexual sodomy. In Printz v. United States,12 for example, a bare majority invalidated a provision of the Brady Handgun Violence Prevention Act as an infringement on “states’ rights,” prompting dissenting Justice Breyer to question the majority’s analysis and to highlight competing federal principles in Germany and the European Union. He noted that “their experience may . . . cast an empirical light on the consequences of different solutions to a common legal problem.”13 Yet, in delivering the opinion for the Court in Printz, Justice Scalia responded bluntly: “Comparative analysis is inappropriate to the task of interpreting a constitution.”14 Justice Scalia’s ire intensified in Atkins v.Virginia. There, writing for the Court, Justice John Paul Stevens cited the “world community” in support of what he claimed was an emerging “national consensus” against the execution of murderers who are mentally retarded. He also cited, along with states’ execution practices, an amicus brief filed by the European Union. Dissenting Justice Scalia shot back, observing that “the Prize for the Court’s Most Feeble Effort to fabricate ‘national consensus’ must go to its appeal . . . to the views of assorted professional and religious organizations, members of the so-called ‘world community,’ and respondents to opinion polls.”15 No less opposed to the use of comparative legal materials, Justice Clarence Thomas, in a concurring opinion in the denial of certiorari in another death penalty case, Knight v. Florida,16 criticized the petitioners for citing foreign sources in support of the claim that twenty years on death row amounts to cruel and unusual punishment under the Eighth Amendment. Likewise, in another concurring opinion on the denial of review, in Foster v. Florida,17 Justice Thomas challenged Justice Breyer’s citation of findings of European and Canadian courts, in a dissenting opinion from the denial of review, as irrelevant “foreign moods, fads, or fashions.” Still, perhaps, the most widely noted controversy related to the Rehnquist Court’s drawing on comparative judicial decisions remains the majority’s citing of a decision of the ECtHR in support...

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