--- description: Supreme Court Justice Stephen Breyer argues judges should look at foreign thinking on contentious issues such as the death penalty. title: Supreme Court Justice Looks Abroad on Death Penalty image: https://static.time.com/v3/assets/bltea6093859af6183b/blt1b9926e3ba0ed80f/6988637e0b72e3bdf86e5cdc/stephen-breyer.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 ---  * [Politics](/section/politics/) ## Politics Update your preferences in [Account Settings](/account/preferences/) Close * [Supreme Court](/tag/supreme-court/) ## Supreme Court Update your preferences in [Account Settings](/account/preferences/) Close # Supreme Court Justice Argues World Opinion Matters on the Death Penalty by [Ryan Teague Beckwith](/author/ryan-teague-beckwith/) ## Ryan Teague Beckwith Update your preferences in [Account Settings](/account/preferences/) Close Sep 14, 2015 3:31 PM CUT  Supreme Court Justice Stephen Breyer testifies before the Financial Services and General Government Subcommittee during a hearing on the budget for the Supreme Court in Washington, District of Columbia, U.S., on Monday, March 23, 2015. Supreme Court Justice Stephen Breyer testifies before the Financial Services and General Government Subcommittee during a hearing on the budget for the Supreme Court in Washington, District of Columbia, U.S., on Monday, March 23, 2015.Pete Marovich—© 2015 Bloomberg Finance LP by [Ryan Teague Beckwith](/author/ryan-teague-beckwith/) ## Ryan Teague Beckwith Update your preferences in [Account Settings](/account/preferences/) Close Sep 14, 2015 3:31 PM CUT Should the Supreme Court care that other countries have abolished the death penalty? That looming question animates Justice Stephen Breyer’s “The Court and the World,” a brisk but academic book that argues that it is relevant for the nation’s top judges to consider what other countries’ legal systems have decided when faced with difficult issues. “If someone with a job roughly like my own, facing a legal problem roughly like the one confronting me, interpreting a document that resembles the one I look to, has written a legal opinion about a similar matter, why not read what that judge has said?” writes Breyer, who was appointed by President Clinton in 1994\. “I might learn from it, whether or not I end up agreeing with it.” It’s not an academic question. In recent years, members of Congress have harshly criticized justices for citing foreign courts, with one former member [even suggesting](http://www.nbcnews.com/id/4506232/ns/politics-tom%5Fcurry/t/flap-over-foreign-matter-supreme-court/#.VfbUsST%5FTDo "undefined") it could be grounds for impeachment. Meantime, the court is [narrowly divided on the death penalty](http://www.usatoday.com/story/news/nation/2015/09/14/death-penalty-execution-supreme-court-lethal-injection/32425015/ "undefined"), an issue where the United States bucks the trend of other advanced democracies toward abolition. In 284 pages, Breyer explores the history of justices looking to foreign courts, the influence of America’s legal system on the world, the increase in legal questions over international agreements and the role of judges in spreading American influence. But the heart of the book is an 11-page chapter defending the court’s citation of foreign cases. And while Breyer mentions cases involving consumer safety, desertion and gay rights, that section of the book returns again and again to court decisions on the death penalty. That’s because one of the arguments for the court to ban the death penalty in the United States is that it violates the constitutional prohibition on “cruel and unusual punishment.” For Breyer, who called the death penalty [“capricious, random, indeed arbitrary”](http://www.supremecourt.gov/opinions/14pdf/14-7955%5Faplc.pdf "undefined") in a dissent earlier this year, foreign practices help show how unusual it is. ### See Ruth Bader Ginsburg Grow from Toddler to Supreme Court Justice  August 2, 1935 Childhood photograph of Ruth Bader taken when she was two years old. Collection of the Supreme Court of the United States  1948 Ruth Bader delivers a sermon as camp Rabbi at the age of 15, at Che-Na-Wah camp in Minerva, N.Y. Collection of the Supreme Court of the United States  December, 1953 Studio photograph of Ruth Bader, taken in Dec. 1953 when she was a Senior at Cornell University. Collection of the Supreme Court of the United States  Fall, 1954 Martin D. Ginsburg and Ruth Bader Ginsburg taken in the fall while Martin Ginsburg served in the Army, before being drafted, stationed at Artillery Village in Fort Sill, Okla. Martin Ginsburg was drafted into the Army in 1954. Collection of the Supreme Court of the United States  Summer 1958 Ruth Bader Ginsburg and Martin Ginsburg play with their three-year old daughter, Jane, in her bedroom at Martin's parents' home in Rockville Centre, N.Y Collection of the Supreme Court of the United States  Fall 1980 Judge Ruth Bader Ginsburg during her first term as a United States Circuit Judge to the U.S. Court of Appeals for the District of Columbia. Collection of the Supreme Court of the United States  December, 1980 Ruth Bader Ginsburg, her husband Martin Ginsburg, and their children James and Jane in a boat off the shore of St. Thomas in the Virgin Islands. Collection of the Supreme Court of the United States  1972 Ruth Bader Ginsburg with her husband Martin at the Greenbrier resort in White Sulphur Springs, W.V. Collection of the Supreme Court of the United States  Oct. 1, 1993 Informal portrait of Justice Ruth Bader Ginsburg standing before the mantle in the Justices' Dining Room in Washington. Collection of the Supreme Court of the United States  August 10, 1993 Justice Ruth Bader Ginsburg is sworn in as an Associate Justice of the Supreme Court. From left to right stand President Bill Clinton, Justice Ruth Bader Ginsburg, Martin Ginsburg, and Chief Justice William Rehnquist. Collection of the Supreme Court of the United States  Official portrait of Justice Ruth Bader Ginsburg Steve Petteway—Collection of the Supreme Court of the United States According to the human rights group Amnesty International, [101 countries have abolished the death penalty](https://www.amnesty.org/en/what-we-do/death-penalty/ "undefined") for all crimes. Breyer also notes how past cases have been shaped by world opinion, with justices barring executions for children under the age of 16, for rape that did not lead to death and for the accomplice in a robbery that led to a death. He even notes that the phrase “cruel and unusual punishment” itself is foreign since it comes from an English declaration from 1688. He also considers — then rejects — the arguments of critics, including that citing foreign courts could undermine American sovereignty or lead judges to a lazy “nose counting” of other countries’ practices before making decisions. Ultimately, Breyer argues, foreign decisions are just another source of information, no different than lower court decisions, “useful law review articles, books of history (and) statistical studies.” Informative, but unlike a Supreme Court decision, not binding. **Read Next:** [_The Death of the Death Penalty_](http://time.com/deathpenalty/ "undefined") ```json [{"@context":"https://schema.org","@type":"NewsArticle","@id":"https://time.com/4033313/supreme-court-death-penalty-stephen-breyer/","mainEntityOfPage":{"@type":"WebPage","@id":"https://time.com/4033313/supreme-court-death-penalty-stephen-breyer/"},"headline":"Supreme Court Justice Argues World Opinion Matters on the Death Penalty","datePublished":"2015-09-14T15:31:06.000Z","dateModified":"2026-05-11T05:01:41.474Z","description":"Supreme Court Justice Stephen Breyer argues judges should look at foreign thinking on contentious issues such as the death penalty.","url":"https://time.com/4033313/supreme-court-death-penalty-stephen-breyer/","keywords":["Supreme Court","Death Penalty","Capital Punishment"],"thumbnailUrl":"https://static.time.com/v3/assets/bltea6093859af6183b/blt1b9926e3ba0ed80f/6988637e0b72e3bdf86e5cdc/stephen-breyer.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","author":[{"@type":"Person","name":"Ryan Teague Beckwith","jobTitle":null,"url":"https://time.com/author/ryan-teague-beckwith/"}],"articleSection":"Politics","image":[{"@type":"ImageObject","url":"https://static.time.com/v3/assets/bltea6093859af6183b/blt1b9926e3ba0ed80f/6988637e0b72e3bdf86e5cdc/stephen-breyer.jpg?branch=production&width=1200&quality=75&auto=webp&crop=1200:675&height=675","width":1200,"height":675,"headline":"Supreme Court Justice Stephen Breyer testifies before the Financial Services and General Government Subcommittee during a hearing on the budget for the Supreme Court in Washington, District of Columbia, U.S., on Monday, March 23, 2015.","caption":"Supreme Court Justice Stephen Breyer testifies before the Financial Services and General Government Subcommittee during a hearing on the budget for the Supreme Court in Washington, District of Columbia, U.S., on Monday, March 23, 2015.","creditText":"Pete Marovich—© 2015 Bloomberg Finance LP","representativeOfPage":true}],"publisher":{"@type":"Organization","name":"Time","url":"https://time.com/","logo":{"@type":"ImageObject","url":"https://time.com/images/logo.png","width":528,"height":156},"foundingDate":"March 3, 1923","sameAs":["https://www.facebook.com/time","https://www.instagram.com/time/?hl=en","https://twitter.com/time","https://www.pinterest.com/timemagazine"]}},{"@context":"https://schema.org","@type":"BreadcrumbList","itemListElement":[{"@type":"ListItem","position":1,"item":{"@id":"/section/politics/","name":"Politics"}},{"@type":"ListItem","position":2,"item":{"@id":"/tag/supreme-court/","name":"Supreme Court"}},{"@type":"ListItem","position":3,"item":{"@id":"https://time.com/4033313/supreme-court-death-penalty-stephen-breyer/","name":"Supreme Court Justice Argues World Opinion Matters on the Death Penalty"}}]}] ```