A follow up to yesterday's post about the soft power wielded by the European Union. Mary Ann Glendon a Harvard law professor discusses why the citation of foreign law and precedent in cases before the United States Supreme Court is a dangerous path to trod.

She cites a case earlier this year where the court overturned a state death penalty decision in the case of a juvenile murderer. Here is what Gelendon says in regard to this case:
 

"Earlier this year, in Roper v. Simmons, a 5-4 majority struck down the death penalty as it applied to persons over 15 and under 18. Justice Anthony Kennedy stated for the court that "the overwhelming weight of international opinion [is] against the juvenile death penalty," and that "the opinion of the world community, while "not controlling our outcome, does provide respected and significant confirmation for our own conclusions." In its effort to delegitimate state laws in question, the Roper majority, including Justice Breyer, not only reached out to "international opinion," but selectively cited various social science materials."

Europe is the primary source of this international opinion against the death penalty. This is a clear example of how the culture of the EU helped shape the majority opinion in a case involving a hotly debated social issue.  Glendon has a very good argument showing why judges would be wise to avoid going outside the country for these ideas. In the midst of the current confirmation hearings for Judge John Roberts' nomination as Chief Justice this is a good piece to read for background on how important this current season of court nominations is to our society. You can read the entire piece here.