In Roper v. Simmons, six members of the Supreme Court agreed that international law is relevant to determination of "society's evolving standards of decency" under the Eighth Amendment. Roper represented the culmination of a battle over the use of international and foreign law in constitutional interpretation that has raged on the Court since the late 1980s, and that has found expression recently in cases such as Lawrence v. Texas, invalidating the Texas homosexual sodomy statute; Grutter v. Bollinger, upholding affirmative action in higher education; and Atkins v. Virginia, invalidating the death penalty for the intellectually disabled. And in extrajudicial speeches and writings, Justices Ginsburg, Breyer, and O'Connor, and at one point the late Chief Justice Rehnquist, all indicated that consideration of international and foreign law is important to the jurisprudence of the modem Supreme Court.
Sarah H. Cleveland,
Our International Constitution,
Yale J. Int'l L.
Available at: http://digitalcommons.law.yale.edu/yjil/vol31/iss1/2