An email on today’s death penalty decision: Various comments in The Corner have touched on SCOTUS’ citing an unratified treaty as reasoning for it’s decision. No one, however, has directly addressed the implications of Scalia’s comment that (paraphrasing) “the court now joins and ratifies treaties.” While SCOTUS has heretofore acted *only* as an accountable domestic legislature, it is now assuming the power to create international law. Pretty damn scary it seems to me.
ME: Just a reminder that John Jay was not acting in his judicial capacity when he negotiated this country’s first treaty with Great Britain. I want to make sure that’s not cited as precedent here.