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May 18, 2010

Fasincating on-line discussion of Graham ruling from the New York Times

I am pleased and intrigued to see that the New York Times has this spectial on-line section with four astute criminal justice commentators providing their views on the Supreme Court's work yesterday in Graham. The heading for this section is "Redefining Cruel Punishment for Juveniles," and here is a list of the commentors with links to their pieces:

All of these relatively short pieces are worthy of a close read, and there are astute insights (and turns of phrases) in all these commentaries.  But I especially want to highlight these interesting comments from the end of Paul Butler's piece:

The breaking news is Chief Justice Roberts. He broke away from his usual conservative running buddies to agree with the more progressive justices that the sentence in this case was unconstitutionally harsh. For liberals who thought that the chief justice could never be rehabilitated, judicially speaking, now there’s a glimmer of hope.

All of this helps make the liberal case for nominee Elena Kagan. President Obama’s stated hope is that Ms. Kagan would bring to the Supreme Court the consensus-building skills she displayed as dean of Harvard Law School. Though Justices Alito, Thomas and Scalia remain lost causes, it might be worthwhile for Justice Kagan to treat John Roberts to a mocha frappuccino every now and then.

This case also sends a message that President Obama knows how to pick justices with his same progressive values. Liberals had some concern about where Justice Sotomayor, the former prosecutor, would be on criminal justice issues, but in this case she signed a separate opinion with the two most liberal members of the court. That opinion basically says “Clarence Thomas, shame on you!”

So maybe Ms. Kagan’s liberal critics should chill out some. The president, when he interviews prospective Supreme Court nominees, seems to be doing a fine job of either speaking persuasively or listening deeply.

May 18, 2010 at 10:01 AM | Permalink


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Using international opinion to develop American jurisprudence is unwise and undemocratic. It allows liberals to "cherry-pick" those cases they support while burying those that do not fit their world-view.

For example, you will not find a liberal court cite international opinion in the context of punitive damages as the rest of the world thinks it foolhardy to allow an unguided, unaccountable, jury to set punitive damages.

Posted by: mjs | May 18, 2010 11:55:37 AM

The citing of the authority of a non-ratified international convention is insurrection. Reviewed here:


Posted by: Supremacy Claus | May 19, 2010 4:32:05 AM

To follow up on the comment by mjs about selective use of the law of other nations, let me cite two examples.

1. Death penalty: We often hear that the nations of the EU have abolished capital punishment. And that is correct. What we don't hear is that Oriental, African, and Middle Eastern nations retain it, as do India and Indonesia. Well over half the world's population retains it, and that too we don't hear about.

2. The exclusionary rule: The USA has the most sweeping and inflexible exclusionary rule in the world. Even the countries of the EU do not go as far as we do, and have instead adopted a balancing test. But it will be a long day in December before we hear Justice Kennedy of the liberals say anything about that.

Posted by: Bill Otis | May 19, 2010 9:36:34 AM

We should at least not involve international opinion from affecting our jurisprudence. I definitely agree with mjs on its comment.

Posted by: Brad Fallon | Feb 18, 2011 11:35:03 PM

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