El Nino

More brilliance from the Scalia dissent in yesterday's Roper v. Simmons death penalty case, as he eviscerates the Court's disingenuous reliance on foreign law to justify its decision. Scalia is the only person in America who writes enjoyable legal briefs. I've taken the liberty of removing most of the distracting citations, years, annotations, etc. Where there are quote marks, Scalia is citing a source:

The Court has been oblivious to the views of other countries when deciding how to interpret our Constitution's requirement that "Congress shall make no law respecting an establishment of religion... ." Most other countries--including those committed to religious neutrality--do not insist on the degree of separation between church and state that this Court requires. For example, whereas "we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions," countries such as the Netherlands, Germany, and Australia allow direct government funding of religious schools on the ground that "the state can only be truly neutral between secular and religious perspectives if it does not dominate the provision of so key a service as education, and makes it possible for people to exercise their right of religious expression within the context of public funding." England permits the teaching of religion in state schools. Even in France, which is considered "America's only rival in strictness of church-state separation," "[t]he practice of contracting for educational services provided by Catholic schools is very widespread."

And let us not forget the Court's abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability. Though the Government and amici in cases following Roe v. Wade urged the Court to follow the international community's lead, these arguments fell on deaf ears.

Scalia points out (as he did in his televised debate with Justice Stephen Breyer last month) that "foreign law" is nothing more than a wax nose that the Court molds to justify its own desired results when those results can't be justified based on the Constitution it is supposedly interpreting. They use it when it advances their predetermined conclusion, and ignore it when it doesn't:

The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.

The Court responds that "[i]t 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"....[T]he Court's statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our "fidelity" to the Constitution, our "pride in its origins," and "our own [American] heritage." To the contrary, they are cited to set aside the centuries-old American practice--a practice still engaged in by a large majority of the relevant States--of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources "affirm," rather than repudiate, is the Justices' own notion of how the world ought to be, and their diktat that it shall be so henceforth in America.

How interesting that this court completely discounts the opinions of American citizens in the various states who are constitutionally charged with actually making the laws, while placing preeminent importance on the opinions of foreign judges.

Long live Antonin Scalia, the century's greatest Supreme Court justice.