Our process for selecting federal judges has unfortunately become increasingly controversial and divisive in recent years. That is largely because courts are departing further and further from our laws and traditions, and injecting themselves further and further into our nation's most sensitive social and political issues -- where courts simply don't belong.
But whatever one's personal views may be with respect to the various controversial rulings that have been issued in recent years, surely all Americans can at least agree that U.S. courts must decide U.S. cases on the basis of U.S. law and U.S. precedent -- not the positions of foreign governments and foreign courts. Yet that is precisely what is occurring, according to legal scholars, observers, and the justices themselves.
Through a series of recent rulings, the U.S. Supreme Court has essentially determined that our criminal laws and criminal policies are informed, not only by our Constitution and the policy decisions of the American people through their elected representatives, but also by the rulings of foreign courts and the practices and laws of foreign governments. Indeed, in a series of recent cases, the U.S. Supreme Court has actually rejected its own prior precedents in part because foreign governments or courts have expressed disagreement with those precedents.
For example, in Penry v. Lynaugh (1989), the U.S. Supreme Court held that a state may impose the death penalty on convicted criminals regardless of their IQ, if the state so chooses -- but in Atkins v. Virginia (2002), the Court reversed its earlier ruling in part because the Court was concerned about "the world community" and specifically the views of the European Union.
Similarly, in Bowers v. Hardwick (1986), the Court held that each state retains the discretion to determine whether certain kinds of conduct, long considered immoral under our longstanding legal traditions, should or should not remain illegal -- but in Lawrence v. Texas (2003), the Court again reversed itself, this time in part because it was concerned about the European Court of Human Rights and the European Convention on Human Rights.