Globalizing the Supreme Court. (Insider Report).

Writing in the September/October American Spectator, Jeremy Rabkin, a professor of government at Cornell, highlighted a constitutional "iceberg" lurking in a footnote to a recent Supreme Court decision. Last June, in its Atkins v. Virginia decision, the High Court ruled that capital punishment cannot be imposed on mentally retarded murderers. A footnote in that decision, notes Rabkin, "acknowledged an iceberg lurking beneath the surface ... [that] may someday blow a big hole in the Constitution"--specifically, the concept that our laws must harmonize with those of "the world community."

Footnote 21, found on pages 11-12 of Justice John Paul Stevens' typically diffuse and sentimental majority opinion, notes: "... within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." It then cites a friend-of-the-court brief filed by the European Union in an earlier case.

To their credit, Chief Justice William Rehnquist and Justice Antonin Scalia issued scalding dissents objecting to the EU citation. Rehnquist described "the Court's decision to place weight on foreign laws" as "antithetical to considerations of federalism.... I fail to see ... how the views of other countries regarding the punishment of their citizens provide any support for the Court's ultimate determination." Justice Scalia mockingly awarded ...