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1702692998 The obvious answer lies with the parties themselves and the briefs they submit in advance of the argument. But just as cert petitions have word limits (9,000 words), so do the briefs on the merits that the parties submit once a case is granted (15,000 words for each side, plus an extra 6,000 words for the petitioner to file a reply brief). Often, the parties consume nearly all the allotted space in setting out the background of the case and the legal arguments. There is little room left for what the justices may most want to know: the larger context, the implications of ruling for one side or the other.

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1702693000 This is where the amicus curiae, the friend of the court, comes in. Assuming each side agrees to the other’s list of amici, as is almost always the case, there is no upper limit on the number of “friends” the parties can marshal. (The Court itself can grant permission for an amicus filing if there is a dispute between the parties over the issue.) While an amicus is, of course, primarily a friend of the particular party in support of which it is submitting a brief, the phrase “friend of the court” is not a misnomer. An informative amicus brief does the justices a favor by presenting, within a 9,000-word limit, useful and relevant information that supplements, without duplicating, the information in the party’s brief. Justice O’Connor’s reliance on the amicus briefs in the University of Michigan Law School admissions case is an example of how important these filings can be. The helpful potential of a good amicus brief is not lost on the lawyers who appear before the Court, and the number of such briefs has grown substantially. While there were only fifteen amicus briefs filed in Roe v. Wade, today there are often at least that many in fairly routine cases, and in major cases the number runs into the dozens. Amicus briefs are often used by interest groups to stake out a public position in cases within the group’s area of interest. The brief can then be distributed to members and potential donors as a way of indicating that the group is a player on the Supreme Court stage.

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1702693002 The solicitor general’s office, which represents the federal government as a party in many of the Court’s cases, is also an active amicus, informing the justices of the potential impact on federal programs in cases that do not involve the government directly. In order to evaluate the advisability of filing a brief, the solicitor general’s office has a system for learning which federal agencies might have a stake in the outcome of a pending non-federal case. But no system is perfect, and a recent failure illustrates what can happen when the justices unknowingly rely on partial information.

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1702693004 In Kennedy v. Louisiana, a case decided in 2008, the question was whether it was constitutional to impose the death penalty for the rape of a child if the crime did not also involve murder. Years earlier, shortly after restoring capital punishment, the Court had ruled in Coker v. Georgia (1977) that the death penalty was not constitutionally acceptable for the rape of an adult woman. Louisiana was one of a handful of states that sought to extend its death penalty, beyond murder, to child rape. Was such a penalty one of the “cruel and unusual punishments” that the Eighth Amendment prohibits?

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1702693006 As in other categorical challenges to the application of the death penalty, the Court surveyed the sentencing landscape. With only six states imposing capital punishment for the rape of a child, the majority concluded that there was a national consensus against this use of the death penalty. The vote to declare the Louisiana law unconstitutional was 5 to 4. Writing for the majority, Justice Kennedy noted that while Congress had expanded the federal death penalty during the 1990s, none of the new applications involved the rape of a child. The observation bolstered the majority’s conclusion.

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1702693008 But the observation was incorrect. Neither the parties, nor the solicitor general, nor any of the amici were aware that only two years earlier, Congress had made the rape of a child subject to the death penalty for members of the armed forces governed by the Uniform Code of Military Justice. This inconvenient fact came to light after the Court had delivered its decision and recessed for the summer. Both Louisiana and the solicitor general’s office filed briefs asking the justices to reconsider the case. Briefs flew back and forth for weeks. Eventually, the Court announced that it would stand by its decision.

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1702693010 In addition to institutional embarrassment in many quarters, there was a particular irony to this failure of information. The Court’s Eighth Amendment jurisprudence depends to a considerable measure on the justices’ assessment of public opinion as reflected in statutes. A punishment that is demonstrably “unusual” is deemed constitutionally problematic. On this basis, the Court has invalidated the death penalty for mentally retarded defendants who commit murder (Atkins v. Virginia, 2002) as well as for youthful killers (Roper v. Simmons, 2005). But this type of analysis depends on accurate information. The Court is vitally interested in public opinion, but it can’t read minds. Like the rest of us, the justices only know what they learn on their own or what someone tells them.

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1702693015 美国最高法院通识读本 [:1702690389]

1702693016 美国最高法院通识读本 Chapter 8The Court and the world

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1702693018 During the first decades after independence, some legislators and other leaders of the new United States were eager to insulate the country’s legal system against corruption from the old regimes of Europe. Between 1799 and 1810 the legislatures of New Jersey, Kentucky, and Pennsylvania passed statutes forbidding the state courts from citing any cases decided by English courts after July 4, 1776. In private correspondence, Thomas Jefferson supported the effort to rid American courts of English law.

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1702693020 But even then, the American attitude toward foreign law was ambivalent, hardly universally hostile. The first paragraph of the Declaration of Independence, after all, referred to “a decent respect for the opinions of mankind.” The Federalist Papers contain references to more than five hundred foreign place-names. Early Supreme Court opinions included abundant references to foreign law, and accounts of Napoleon’s legal reforms in France were widely circulated. Much later, twentieth-century Americans watched with pride as the nations of Europe followed the U.S. model in embracing the idea of a constitutional court, empowered to invalidate legislation deemed incompatible with the country’s basic charter. As these courts spread their wings in new post–World War II or post–Cold War democracies, it was common for their judges to invoke U.S. Supreme Court precedents.

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1702693022 But despite widespread respect for the Supreme Court, no country has simply imported the American experience wholesale. While the Framers of the U.S. Constitution had little in the way of practical experience to guide them, the architects of the new constitutional systems could evaluate the strengths and weaknesses of the American experience. The choices they made are illuminating.

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1702693024 For example, no country in the world has chosen to bestow life tenure on its judges. A single nonrenewable term is the most common model. The fifteen members of the Italian Constitutional Court serve for nine years, whereas the sixteen justices of the Federal Constitutional Court in Germany serve for twelve. South Africa’s Constitutional Court, which was created by the postapartheid constitution in 1994 and quickly established itself in the forefront of constitutional courts, has twelve-year terms for its eleven justices.

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1702693026 While a complete inventory of the judicial tenure of the world’s constitutional courts is beyond the scope of this book, these examples demonstrate that other countries have seen little to emulate in the U.S. model of life tenure. Not coincidentally, the confirmation battles that mark the U.S. judicial selection process, even for lower court judges, are largely absent. This is undoubtedly due in large measure to differences in the rules for selecting and confirming judges. In Germany, for example, confirmation requires a two-thirds majority, a rule that effectively mandates political compromise at the beginning of the process. But the scheduled turnover created by term limits also contributes to the lowered temperature by removing the prospect that a political party temporarily in power can exercise long-lasting control over the judiciary.

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1702693028 Another difference is that European courts, at least, tend to observe a norm of unanimity. Separate opinions are disfavored and, in some countries, even officially forbidden. When judges are permitted to note a dissenting view, they are often required to do so anonymously. Oral arguments are rare. Taken as a whole, rules like these make it less likely that judges will take on the role of public—or polarizing—personalities.

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1702693030 Comparisons that focus on structure are inherently incomplete, because both substantive law and the domestic political context in which it evolves obviously differ across borders. These variations, along with the fact that the jurisprudence of some foreign courts has moved in a more liberal direction even as U.S. courts have become more conservative, accounts for the recent controversy in the United States over the propriety of federal judges citing nonU.S. judicial rulings in their own opinions. Citing foreign law, both Justice Scalia and Chief Justice Roberts have complained, is like looking out over a crowd and picking out one’s friends—selecting those opinions most compatible with a desired result.

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1702693032 Critics have focused on three Supreme Court opinions decided between 2002 and 2005. All three moved the law in a progressive direction, with the majority opinions citing the views of foreign courts or lawmakers. These foreign sources were clearly not invoked as determinative of the meaning of the U.S. Constitution, nor could they have been. But mere mention of the foreign materials provoked anger by framing the question of how to interpret the Constitution in a global context of evolving views on human dignity. Two of the decisions concerned capital punishment. The Court held in Atkins v. Virginia, in 2002, that the Eighth Amendment’s prohibition of cruel and unusual punishment barred the execution of mentally retarded offenders. The majority mentioned a brief on the defendant’s behalf by the European Union. Three years later, in Roper v. Simmons, the Court barred the execution of those convicted of having committed a capital crime before the age of eighteen. In this case, the majority cited European amicus briefs as well as the United Nations Convention on the Rights of the Child, a treaty that the United States has not ratified.

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1702693034 In between those two decisions, the Court ruled in Lawrence v. Texas (2003) that a Texas law criminalizing homosexual sodomy was unconstitutional. That decision overturned a seventeenyear-old precedent (Bowers v. Hardwick, 1986) and marked a constitutional turning point for gay rights. The majority opinion cited the English law that decriminalized sodomy in 1967 as well as a similar 1981 ruling by the European Court of Human Rights.

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1702693039 11. People wait through the night to pay respects to Justice Thurgood Marshall, lying in repose in the Court’s Great Hall, January 27, 1993.

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1702693041 These decisions sparked a strong negative response from conservatives in Congress. In 2004, after the Atkins and Lawrence rulings, the chairman of the House Judiciary Committee, F. James Sensenbrenner, a Republican from Wisconsin, addressed the members of the Judicial Conference, gathered for their spring meeting at the Supreme Court. “Inappropriate judicial adherence to foreign laws or legal tribunals threatens American sovereignty, unsettles the separation of powers carefully crafted by our Founders, and threatens to undermine the legitimacy of the American judicial process,” the congressman told Chief Justice Rehnquist and the other judges. He warned that Congress would soon examine the issue. Other congressional Republicans raised the threat of impeachment, warning that they regarded citing foreign law as incompatible with the reference in Article III “good behavior.”

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1702693043 This controversy did not appear to change any minds on the Supreme Court. Justices who supported acknowledging foreign sources of law continued to do so, while those who opposed the practice continued to criticize it. Talk of impeachment faded as congressional attention shifted to other targets. It is uncertain whether the public as a whole even paid attention to a debate that for at least some months captivated legal and political circles in Washington.

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1702693045 What is clear, however, is that even though most people know little about the Supreme Court and may never hold a Supreme Court opinion in their hands, the Court occupies a place in the public imagination. The large crowd that gathered for the laying of the cornerstone in 1932 came to celebrate the Court’s long-delayed arrival at a home of its own. The people who waited outside the Court through a cold winter night in 1993 to pass by Justice Thurgood Marshall’s casket were also, in their way, celebrating: the life of a man who had inspired the Court as a lawyer and served it as a justice. Although other nations choose features of the Court to reject as well as to emulate, as they tailor their constitutional courts to their own needs, it is still the Supreme Court of the United States that looms over the world’s inner landscape. The Framers expected as much. In a landmark opinion of the early Court (Martin v. Hunter’s Lessee, 1816), Justice Joseph Story described the Supreme Court’s power to decide cases “in the correct adjudication of which foreign nations are deeply interested.” They still are.

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