To understand whether the imposition of the death penalty under certain circumstances would be cruel and unusual, recent Court decisions have taken note of, among many other factors, world-wide norms. Some conservatives, like Justice Scalia and Judge Alito, believe that foreign affairs cannot influence an interpretation of the Eighth Amendment.
Mainstream judges, like Justice Breyer, recognize that American values do not exist in a vacuum. While American values do not always keep pace with change in the rest of the world, they are not uninfluenced by worldwide opinion. If the world has generally come to accept that some punishments are too severe to inflict, it’s reasonable for the Supreme Court to take note of that global trend.
Judge Alito, a charter member of the Robert Bork fan club, wouldn’t look to foreign law because he, like Bork, is an originalist. He doesn’t agree that the Constitution is a living document that defines a set of core values capable of adaptation to changing times and circumstances. An originalist’s understanding of “cruel and unusual punishment†is frozen in time; if a punishment wasn’t unconstitutionally cruel in 1789, it cannot be today. Go ahead and flog; the old ways are still the best.
Because Judge Alito views his job as divining the specific meaning of “cruel and unusual punishment†as understood by the Framers more than two centuries ago, the modern world is unimportant. If evolving standards of decency in this country are irrelevant, values in other countries similarly merit no notice.
For obvious reasons, Judge Alito's originalist philosophy is out of step with a mainstream (and, ironically, with the Framers' original) understanding of the Constitution. Perhaps for that reason, Judge Alito did not attack the use of foreign law from the perspective of an originalist, but argued (in essence) that it's just too difficult to understand foreign law, and downright un-American to try. Judge Alito could have made that argument without lampooning the Court’s Eighth Amendment jurisprudence by suggesting that it all boils down to a “poll†of foreign countries. This was the kind of cheap shot we’d expect from Tom Coburn, not from someone who wants to join the Court whose work he has just ridiculed.
This post took Judge Roberts to task for implying that judges should live a “cloistered life,†untouched by the world around them. If anything, Judge Alito’s testimony was more blatant in its pandering to the extreme right.
Judge Alito evidently disagrees with Justice Breyer, who argues that American courts can learn from the successes and failures of other constitutional sytems. It's fair to disagree. It isn't fair to agree (even tacitly) with Tom Coburn's claim that it "undermines democracy" to place American law in the context of the world around us. It is telling that Judge Alito didn't disavow that assertion, or Coburn's yahoo-ish claim that considering foreign law "violates the Constitution." Is Judge Alito trying to tell Sen. Coburn that he shares Coburn's extreme views?
