A Sword That Cuts Both Ways

The New Republic, to its credit, actually makes the liberal case against the recent, disasterous Supreme Court ruling on juvenille executions. Justice Antonin Scalia has been mocked by many on the Left for his scathing attacks on the Court's recent propensity to appeal to foreign law in its decision making, but TNR's legal affairs editor Jeffery Rosen points out that Scalia is mainly correct--and liberals have just as much to lose as conservatives on this one:

Conservatives are right to fear the internationalization of the culture wars--that is, the danger that American traditions will be struck down in the name of international values. But liberals should fear this development as well. Kenneth Anderson of the Washington College of Law predicts that, in the wake of Roper, citations to international authorities "will spread throughout the U.S. judicial system like an Internet virus--because both sides will have to assume in any litigation that it now matters." We may soon see shaky claims about a purported international consensus invoked in cases ranging from corporate litigation to free speech. And liberal values will hardly be reliable winners. As Jack Goldsmith of Harvard Law School suggests, the U.S. constitutional tradition tends to be much more libertarian and protective of rights than the European one in cases involving hate speech, defamation, abortion, and criminal procedure. If the German Constitutional Court's vision of abortion or free speech were imposed on the United States, for example, liberals would protest in the streets.

Rosen also gives Justice Anthony Kennedy, the author of the Roper decision, a deserved scathing, including this suprising bit of behind-the-scenes insight:

The morning after the Supreme Court struck down the juvenile death penalty as a form of cruel and unusual punishment in Roper v. Simmons, the reaction in the Supreme Court press room was unusually scathing. A liberal journalist lamented that, ever since Justice Anthony Kennedy, who wrote the 5-4 opinion for the Court, styled himself as a judicial statesman, he has become insufferable, out of control, and "deserves to be slapped." A conservative journalist chimed in that the decision was embarrassing, because the justices had imposed their own moral preferences on the country without attempting to convince those who disagreed.

(Hat tip to Joshua Claybourn at In the Agora for the article)