Challenging his American University law school audience, Scalia asked, “Do you think you’re representative of American society? Do you not realize you are a small cream at the top and that your views on innumerable things are not the views of America at large? Doesn’t it seem somewhat arrogant for you to say, ‘I can make up what the moral values of America should be on all sorts of issues, penology, the death penalty, abortion, whatever’?”
Quoting a phrase from a 1958 decision by Chief Justice Earl Warren — “the evolving standards of decency that mark the progress of a maturing society” — and noting that “I detest that phrase,” Scalia said some of his colleagues on the court employ “evolving standards of decency” to justify unilaterally imposing changes in death penalty laws, overriding the will of democratically elected state legislatures.
[snip]
“Do we just use foreign law selectively? When it agrees with what the judges would like the cases to say, we use the foreign law and when it doesn’t, we don’t use it?” Scalia asked.
Although not mentioning Justice Kennedy by name, Scalia said that Kennedy’s decision in Lawrence vs. Texas arbitrarily used foreign precedents: “not all foreign law, just the foreign law that agreed with the disposition of the case.”
The very case that Breyer used to support his view was rescinded later by that same court! Invalid from start to finish. He has to go.