Globalizing the Supreme Court. (Insider Report).

Writing in the September/October American Spectator, Jeremy Rabkin, a professor of government at Cornell, highlighted a constitutional "iceberg" lurking in a footnote to a recent Supreme Court decision. Last June, in its Atkins v. Virginia decision, the High Court ruled that capital punishment cannot be imposed on mentally retarded murderers. A footnote in that decision, notes Rabkin, "acknowledged an iceberg lurking beneath the surface ... [that] may someday blow a big hole in the Constitution"--specifically, the concept that our laws must harmonize with those of "the world community."

Footnote 21, found on pages 11-12 of Justice John Paul Stevens' typically diffuse and sentimental majority opinion, notes: "... within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." It then cites a friend-of-the-court brief filed by the European Union in an earlier case.

To their credit, Chief Justice William Rehnquist and Justice Antonin Scalia issued scalding dissents objecting to the EU citation. Rehnquist described "the Court's decision to place weight on foreign laws" as "antithetical to considerations of federalism.... I fail to see ... how the views of other countries regarding the punishment of their citizens provide any support for the Court's ultimate determination." Justice Scalia mockingly awarded footnote 21 "the Prize for the Court's Most Feeble Effort" to fabricate justification for a decision that rests "upon nothing but the personal views of its members." The preferences of the "world community," Scalia notes, have no weight in an American court, since their "notions of justice are (thankfully) not always those of our people."

Years ago, THE NEW AMERICAN warned of efforts to globalize the Supreme Court. In our September 28, 1998 issue (see "Black-Robed Globalists"), we reported on a European trip that July during which Justices Sandra Day O'Connor, Ruth Bader Ginsburg, and Stephen G. Breyer met with their counterparts at the European Court of Justice and other officials of the European Union.

The visit, said a press release from the U.S. Information Agency (USIA), "responds to the New Transatlantic Agenda completed at the December 3, 1995 US-EU Summit in Madrid." Justice Anthony Kennedy, who didn't go on the trip, told the New York Times that the justices who went "have all spent part of past summers teaching in Europe or meeting with European judges, and they have expressed interest in various ways in drawing on other countries' legal experiences."

And in July of last year, Kofi Annan also became the first UN secretary-general to have a "get-acquainted" session with members of the U.S. Supreme Court. (See "Hail to the (UN) Chief?" in our July 2, 2001 issue.)