Lower Courts and Reliance on Foreign Authority

One of the issues rarely addressed in the debate on reliance on foreign authority to interpret constitutional guarantees is what attitude lower courts should take with respect to the question. As most scholars know, the Missouri Supreme Court in Roper v. Simmons relied on foreign authority in flagrantly departing from Supreme Court precedent in Stanford to hold that the juvenile death penalty was cruel and unusual punishment. That approach led to a “no comment” from the Supreme Court in Roper, but a sharp rebuke from Justice Scalia. In dissent Justice Scalia noted: “To add insult to injury, the Court affirms the Missouri Supreme Court without even admonishing that court for its flagrant disregard of our precedent in Stanford. Until today, we have always held that ‘it is this Court’s prerogative alone to overrule one of its precedents.’… Today, however, the Court silently approves a state-court decision that blatantly rejected controlling precedent.”

Last week the Ninth Circuit in Allen v. Ornoski was faced with a death penalty claim by Clarence Ray Allen, an inmate in his seventies who has been on death row for over twenty years. He argued, among other things, “that execution of an elderly person does not comport with ‘evolving standards of decency,’ in that the execution ‘offends humanity,’ provides no deterrence value, does not serve any retributive purpose, and violates the norms of domestic and international law.” The Ninth Circuit, per Clinton-appointee Judge Wardlaw, rejected the international argument out of hand: “While international norms may also be instructive in this analysis, in light of the nonexistence of domestic authority supporting Allen’s claim, and the lack of definitive international authority provided by Allen, we, as an intermediate court, decline to consider the asserted practices of foreign jurisdictions.”

Allen suggests that lower courts should be more cautious than the Supreme Court in relying on foreign authority, particularly where that authority is not clear and definitive. I am not aware of any empirical studies analyzing how lower courts have handled the question of reliance on foreign authority in constitutional adjudication. It would be worth the time to make such inquiries. Nor am I aware of other lower courts that have expressed the need for greater caution on this question. But I can appreciate the concern because obviously adherence to and departure from precedent is of greater moment for lower courts than the Supreme Court.