The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision by Steven G. Calabresi and Stephanie Dotson Zimdahl discusses the breadth of citation of international law in opinions throughout the history of the Supreme Court. And, it provides an overall useful overview, but has some rather shallow (and slanted analysis). The use of scholarship to flame hysteria is quite troubling.
In a summary, Dred Scott, Reynolds, and Roe are singled out as "most problematic" cases in which this was done from the many more discussed in the 171 page article. Citation of international law in Dred Scott was not really a compelling part of the decisions on both sides, though it could add ammo to either. And, to the degree it was used, it often was done on originalist grounds (clarifying traditional views on the slave questions at hand).
Reynolds was the case that upheld a ban on polygamy with various extraneous rhetoric on marriage in Western civilization tossed in. It has various excessively biased thoughts about Mormons, but it is unclear if a neutral court would have protected the practice of polygamy! Nonetheless, the actual decision is far from "problematic" in both the result as well as the belief/act division respecting free exercise of religion.
In fact, Justice Scalia supports both strands of Reynolds (and cites it and related cases) and would probably be sympathetic with a citation of traditional moral norms as a reason to justify the decision. And, like or hate Roe, the international law citations really was not too important to the result. In fact, none of the three would have been decided differently without them.
The actual discussion of the use of foreign law in these cases do not quite justify the rhetoric used in the piece. For instance: "Both Reynolds and Lawrence involved the hot button social issues of their day and both cases resolved those issues by referring to the beliefs and practices of the peoples of northern and western Europe." Not quite.
This is an overly simplistic reading of complex opinions, the former still cited (supportively) for the belief/action split. Justice Scalia supportively cited it and other related cases. He also repeatedly cites tradition to justify laws, so what is so wrong with citing European experience that parallels our own on this matter? As to Lawrence, see below.
This is blatantly poor analysis, and it is aggravating. One is compelled to wonder about the bias suggested here, even though the authors are "sympathetic" of citation of international law in cases involving the Eighth Amendment. For instance, the citation in Lawrence (striking down law banning homosexual sodomy) was not used to "impose secular European values," but to answer citations on the other side (like Chief Justice Burger in Bowers v. Hardwick*) that it violated norms of Western civilization. The opinion was based on American law and experience. And, a equal application of the "right to privacy," not foreign law, was the ultimate basis of the opinion. The repeated denunciation of Lawrence is therefore based more on hysteria than reason.
And, the same with Simmons (execution of minors): the Court did not "rely upon foreign sources of law." They were thought of some relevance, but not binding.** Let me underline that: not binding, expressly so, and the opinion was decided on other grounds. The hysteria to the contrary should not be encouraged by law professors. And, it is shoddy work to do so. [btw it's Roper v. Simmons, not Simmons v. Roper, ok?]
Finally, if the authors think there are five reasons why the federal courts should "rely" (misleading word) on foreign sources, I'm not sure why it is limited to the Eighth Amendment. Due process also is a developing thing, open-ended, and often based on "vague or ambiguous" reasonableness standards (ditto the Fourth Amendment).
The other criteria are relevant in non-Eighth Amendment cases as well. When particularly American institutions such as federalism are at stake, special care should be supplied. Nonetheless, this is true in many cases of ill advised use of source material. But, then again, why should other sources of knowledge be relevant to us? We are special and do not need any help. Such anti-intellectualism and shallow thinking is rather sad actually.
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* "The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction." And the citations overall amount to two paragraphs in the opinion. There was a REASON why the opinion focused on certain countries, and it was NOT promotion of "secular European values."
** "This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation." Also, "It is proper that we acknowledge" ... "provide respected and significant confirmation for our own conclusions."
As to singling out certain countries, United Kingdom experience [in general actually] is of some particular relevance given the source of our laws, and on this issue "the United States now stands alone."