Justice Stephen Breyer outdoes them all. He's invoked the rulings of the supreme courts of Zimbabwe and India and the Privy Council of Jamaica to support his rulings. "These are human beings called judges who have problems that are similar to our own," he once said, by way of explaining his philosophy. "Why don't I read what he says if it is similar enough?"
Perhaps because what other judges do and say is of no relevance - human beings though they may be. Perhaps because looking abroad for rulings that support your own predilections suggests that you cannot find precedent here at home to support your case? And just maybe citing foreign courts is a slippery slope from which there is no return. Once you start fishing for convenient rulings from the Supreme Court of Zimbabwe, it's clear that you will look anywhere and use any rationale to rule as you see fit, regardless of what the law, precedent or the Constitution actually say.
This is the real problem, and the fishing expeditions for friendly decisions abroad is merely a symptom. We have gotten to a point where - on the major issues of the day - liberal elites and their fellow-traveling justices cannot tolerate the idea that a good law can be unconstitutional or that a bad law can actually be constitutional.
In 1989 Justice Kennedy signed on to a ruling that considered the standards he used this month to be "absurd" and/or "irrelevant." He rejected "the contention . that the sentencing practices of other countries are relevant" in 1989. In 2005 he said "it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty." Kennedy says that times have changed and there's a national consensus for banning juvenile executions. Leaving aside the tendentious math he invokes to find this "consensus" on the issue at the state level, if there's a national consensus, why bring up the "international" consensus against the juvenile death penalty?
The salient fact isn't that times have changed. It's that Kennedy has. He's "grown" in the job, welcome news to the editorialists, academics and European sophisticates he seems so keen to please.
Nonetheless, if the plain meaning of the Constitution can change as Justice Kennedy's mind changes, then the meaning of the Constitution is not to be found in its text or in precedent. It's not even to be found in the opinions of the no doubt Solomonic Jamaican Privy Council. No, the meaning of the Constitution does not exist at all - outside the cranium of whichever justice provides the swing vote. Since what is in Justice Kennedy's mind is unknowable, we're back to the question: How can someone take an oath to defend the Constitution if he doesn't know what the Constitution is? Or are they taking an oath to Justice Kennedy?
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