Document Type
Article
Disciplines
International Law
Abstract
This article examines the significance of foreign law and international relations for the Supreme Court of the United States when it resolves constitutional controversies, focusing primarily on the controversial 2005 decision, Roper v. Simmons. The conflict between Justices Kenney and Scalia on the issue of referring to foreign law comes under review by reference to the number of states and nations that permitted the challenged practice when the Court applied the cruel and unusual punishment clause of the Eighth Amendment in its decisions on major death penalty issues. This article reveals that since 1958, the Court has consistently referred to foreign law as relevant in decisions, and furthermore that Justice Scalia initiated the criticism against referring to foreign law in the late 1980s. It then considers the question of whether the international climate actually took center stage in Roper by considering several factors: the increasingly hostile international environment against the U.S. death penalty practice, the forming global network of the judiciary, and the institutional constraints posed by the Constitution to conform to the international trend through the political branches. It finally contrasts Roper with Brown v. Board of Education, and concludes that the decisions reveal that the Court arguably favored national interests at the cost of regional preferences of the American South.
Recommended Citation
Katsuta, Takuya, "Brown and Roper: The American South and the Supreme Court" (2011). Connecticut Journal of International Law. 513.
https://digitalcommons.lib.uconn.edu/cjil/513
Accessibility Requirements
1