Case: Roper v. Simmons [543 U.S.

551] (2005)

Notes:

• How does the court determine whether a punishment is cruel or unusual?

○ "Evolving standards of decency"
○ To determine this, look at pattern among Nat'l jurisdictions.
○ Also looked to theories of punishment, including principle of
proportionality
• What role did int'l law play here?
○ Only country that still executes juveniles. What role does this play in
the opinion?
○ Looking abroad confirms court's conclusion on what is decent and what is
not.
○ Int'l and foreign law is certainly not controlling
○ Looked at UK (shared closest history, so particularly persuasive), also
our law derived from theirs.
○ Majority opinion looks at broad patterns, cites treaties.

• Should we cite int'l courts?

○ Other courts cite Supreme Court, so a policy argument made that we should
in return.

• DISSENT
○ O'Connor: Says 8th amendment has special character
○ Usues vague terms "cruel & unusual". This is not specific to US.
○ Has a special character: b/c what's cruel & unusual in other
countries is also the same here. Doesn’t matter where you are in the world, and
standards of decency, especially in regards to punishment is not specific to US
□ Don’t use fuzzy terms to look at humanity so broadly.
○ Why O'Connor thinks 8th amend. is special circumstance?
□ The 8th amend, is an area that many scholars argue there is
room for int'l laws, etc., b/c its so vague.
○ Scalia:
○ If we signed on to these things, then yes, we should cite int'l law.
But the way the court is doing this, we shouldn’t.
○ Courts say they cite it as persuasive authority, but the manner in
which it is using it is problematic
○ That you're only citing side that's relevant to you.
□ Justice Scalia accused the Court of "invok[ing] alien law when
it agrees with one's own thinking, and ignor[ing] it otherwise,"
® "what is the criterion for whether or not to adopt
foreign precedent? That it agrees with you?"
○ Also says it's really arbitrary in that we don’t have a consistent
pattern of when we look abroad. If we did we would have to overturn American law
that out of sync with the rest of the world. So why not citing it only in this
opinion, and not in others to come out the other way.
○ Cruel & unusual - specificity. Is it specific to our country or is it
something common to humanity more broadly. Some issues are uniquely American. Can
we actually answer this question of uniquely American norms, by looking at int'l
patterns?