Melissa A. Waters (Washington University School of Law in St. Louis) has posted Judicial Dialogue in Roper: Signaling the Court’s Emergence as a Transnational Legal Actor? A Response to Professor Mark Tushnet (INTERNATIONAL LAW IN THE U.S. SUPREME COURT, David L. Sloss, Michael D. Ramsey, & William S. Dodge, eds., pp. 523-529, Cambridge University Press, 2011) on SSRN. Here is the abstract:
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Professor Mark Tushnet contends that Roper v. Simmons is consistent with a long line of U.S. Supreme Court precedent utilizing foreign authority in constitutional interpretation. Given this consistency, he asserts that the controversy over Roper, "must rest on something new in constitutional discourse," and finds the, "something new," in two sources:The rise of originalism and renewed, "concern for the place of the United States in the modern international order."
This response essay suggests two additional sources for the controversy over Roper. First is the emerging transnational judicial dialogue among the world's constitutional courts on human rights issues, and the concomitant emergence of courts as important mediators between domestic and international law. The essay grounds criticism of the Court's decision in part on the fear that American judges might become active participants in this dialogue and that this might have negative consequences for the United States' so-called, "national identity." Second, the controversy over Roper is grounded in part on, "something new," with respect to the Court's use of non-U.S. sources. Seen against the backdrop of the emerging transnational judicial dialogue on human rights, Justice Kennedy's reliance on nonbinding human rights treaties represented a significant departure from, or at least expansion of, the Court's prior practice. Thus, both the interpretive method adopted by the Roper Court and its somewhat problematic selection of sources help explain some of the controversy surrounding the decision.
Both Waters' & Tushnet's essays appear in the anthology edited by Sloss, Ramsey, and Dodge, link provided above.
