In Other Supreme Court News: International Law Studiously Avoided in Juvenile Life-Without-Parole Case
The Supreme Court has struck down state laws mandating juvenile offenders to be sentenced to life without parole with its decision in Miller v. Alabama. The decision is part of a logical progression from decisions constitutionally barring the death penalty for juvenile offenders (Roper v. Simmons) and life sentences for juveniles for crimes not involving murder (Graham v. Florida).
What’s interesting for our purposes: this is another decision in which the Court makes not even a passing reference to international or foreign law. Miller follows on Kennedy v. Louisiana in that regard (though Justice Kennedy give IL a nod in Graham). The Court would have had plenty to work with; international practice is clearly moving away from life sentences in any context, most of all where juveniles are involved or there’s no possibility for parole. (See the amicus brief in the case from Amnesty International and other human rights organizations.)
An unconscious omission? Not a chance. The Court saw a significant backlash from its references to international law in Roper, Atkins, and Lawrence. All nominees to the Court are now asked in confirmation hearings for their positions on the use of foreign law, and all (Democrats included) freely disavow it. International law is the third rail of constitutional jurisprudence these days.
But that doesn’t mean international law is inconsequential in this context. International norms are affecting domestic actors, including states, whose practice is relevant to Eighth Amendment determinations. And the justices of course can take IL into account on the sneak, as it were, by way of adjusting US rights standards to international law without drawing the fire that explicit references will draw. The result is the same: the US comes into line.