Justice Sotomayor, Graham, and International Law

At her confirmation hearing, Justice Sonia Sotomayor appeared to renounce any reliance on the use of foreign or international law in constitutional decisions, walking back from prior statements.  In response to a question from Senator Schumer, she said: “American law does not permit the use of foreign law or international law to interpret the Constitution.”  At another point in the hearings she said that “Foreign law cannot be used as a holding or precedent or to bind or to influence the outcome of a legal conclusion interpreting the Constitution.”  She also declared “I will not use foreign law to interpret the Constitution.”

These statements would seem to be at odds with Justice Kennedy’s majority opinion in Graham v. Florida, in which the court pointed to foreign law to support its decision to declare unconstitutional sentences of life-without-parole for juveniles convicted of non-homicide crimes.  And yet Justice Sotomayor joined Justice Kennedy’s opinion in full.  Has Justice Sotomayor abandoned her confirmation hearing statements so soon? Read on.

In Graham, Justice Kennedy noted the alleged “global consensus” against such sentences.

There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over. This observation does not control our decision. The judgments of other nations and the international community are not dispositive as to the meaning of the Eighth Amendment . But “ ‘[t]he climate of international opinion concerning the acceptability of a particular punishment’ ” is also “ ‘not irrelevant.’ ” . . . The Court has looked beyond our Nation’s borders for support for its independent conclusion that a particular punishment is cruel and unusual. . . .

The question before us is not whether international law prohibits the United States from imposing the sentence at issue in this case. The question is whether that punishment is cruel and unusual. In that inquiry, “the overwhelming weight of international opinion against” life without parole for nonhomicide offenses committed by juveniles “provide[s] respected and significant confirmation for our own conclusions.” . . .

The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.

While Justice Kennedy did not treat foreign law as controlling authority, his opinion certainly “use[d]” foreign law “to interpret the constitution.  It appears to have influenced his judgment, while not dictating the holding.  So does Justice Sotomayor’s decision to join this opinion in full suggest a post-confirmation conversion?  Does it contradict what she told the Senate Judiciary Committee?  Perhaps not.

As Stuart Taylor pointed out at the time, “there was much less than meets to eye to Sotomayor’s apparently categorical assertions.”  In her written responses to questions from the Judiciary Committee, Justice Sotomayor presented a more qualified position than in her oral testimony.  From Taylor’s August 2009 column:

[She ] seemed to say that she would never engage in what has become the five more liberal justices’ practice of relying in part on foreign and international law to interpret the Constitution. But it’s clear when one reads all the way through her various, somewhat muddled statements on the subject that she would do just that. . . .
Sotomayor’s statements that she would not “use” foreign law in constitutional interpretation turn out to mean only that she would not use it “in the sense of relying on decisions of foreign courts as binding or controlling precedent” (emphasis added), as she specified in her post-testimony, off-camera answers to senators’ written questions.

This position is quite in line with Justice Kennedy’s Graham opinion.  Justice Kennedy does not argue that foreign law controls the outcome, only that it can help confirm the Court’s rationale.  This view will not satisfy those who believe foreign law is, and should be, competely irrelevant for questions of constitutional interpretation — it does not satisfy me — but it is consistent with the position Justice Sotomayor articulated to the Senate Judiciary Committee.