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Most Interesting Read In Sunday Newspaper

September 13, 2015

Nothing really popped out of the newspapers today until I got to this article.

I was struck several years ago how much unwarranted flack Justice Kennedy received when talking about using international perspectives to formulate legal reasoning.   While it made perfect sense to me it seemed to tangle up the thinking for those who probably also think French Fries should be called Freedom Fries.

Justice Breyer said last week that in a shrinking and increasingly interconnected world, understanding what is going on abroad is necessary and helpful, whether the topic is national security, free speech, securities regulation or antitrust law. As for citing the decisions of foreign and international tribunals, he said, that issue was a distraction. The decisions were not binding on American courts, he said, but they could be instructive.

“The argument politically is what I call the froth on the surface,” he said. “It has very little to do with what’s going on.”

“What I’m trying to show is that the whole argument is beside the point,” he added. “The world we’re operating in is one in which by and large everyone believes you have to know something about what’s going on abroad.”

On the last day of the term, Justice Breyer himself took account of international practices in a dissent that stopped just short of saying the death penalty violates the Eighth Amendment’s ban on cruel and unusual punishment. In 2013, he wrote, only 22 countries carried out executions, and the United States was one of only eight that executed more than 10 people that year.

It was a short passage in a long opinion. “For those who want to ignore it, they can ignore it,” he said last week, adding that foreign practices might be particularly informative in cases concerning the Eighth Amendment. “It uses the word ‘unusual,’ ” he said, “and the founders didn’t say unusual in what context.”

The 46-page dissent, joined by Justice Ruth Bader Ginsburg, concluded with an invitation for fresh consideration of the constitutionality of the death penalty. “I believe it highly likely that the death penalty violates the Eighth Amendment,” Justice Breyer wrote. “At the very least, the court should call for full briefing on the basic question.”

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