But Justice Kennedy did not say that. What he said was, "Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court’s decision in Trop (Trop v Dulles, 1958), the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.”"
Not surprisingly, Justice Scalia is none too impressed with the work of the majority in Roper, and especially its discussion of foreign practices:
The Court thus proclaims itself sole arbiter of our Nation's moral standards — and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.
To hell with it. We need a bullit proof congressional majority so the legal age can be lowered to 10 in capital murder cases and then fry the bastards one and all.
Sorry .. I'm thinking of the guy that debated with Scalia. Now .. HE DID SAY he thought we should use international law - maybe it was Souter.
"Not controlling" doesn't cut it. He does find it controlling because without it he has no basis to rule the way he did. We have 50 States 18 of which passed laws allowing the execution of minors. He certainly found the international law to be more controlling than the laws of those 18 States.
We had the opportunity to ratify a treaty in accordance with the Constitution and chose not to do so. The Constitutional process rejected the treaty and therefore he is obligated and bound by his oath of office to do the same.
Please, this is like a judge citing evidence that was excluded at trial when he declares someone guilty but says it didn't influence his opinion.