d make decisions like having an abortion without parental approval. Surely, if juveniles are mature enough to decide on an abortion, they can be mature enough to commit murder. Furthermore, Scalia discusses the amici briefs from several states that describe “additional examples of murders committed by individuals under 18 that involve truly monstrous acts.” While juvenile executions are rare, Justices O’Connor and Scalia believe that it was a mistake to ban them completely. In their mind, not only are some adolescents capable of heinous acts, they should be punished accordingly.

The dissenters’ final gripe against the Court lies in the use of international law to help base its opinion. Justice Kennedy explains that save the United States and Somalia, the international community follows “Article 37 of the UN Convention on the Rights of the Child”, which contains an “express prohibition on capital punishment for crimes committed by juveniles under 18.” In addition, he notes that the United States is one of seven other countries that have executed juveniles since 1990, a list that contains Iran, Saudi Arabia and China. By lumping America along with some of the worst human rights offenders, Kennedy attempts to justify why banning the juvenile death penalty is necessary. While Justice O’Connor agrees with Kennedy on deference to international law, Justice Scalia believes this opinion is nothing short of judicial activism. While the use of international law can be helpful by seeing parallels with other countries, it should only be applied when a true “national consensus” occurs. In this particular situation, with the so-called consensus tenuous at best, judges should be careful before they look beyond our borders for legal comparisons. Scalia rightly points out that the Court seems to review international law only when it suits them. Unlike the United Kingdom (whose laws Kennedy also cites in his opinion), issues on separation of church and state, double jeopardy, and right to jury trial are “unique to American jurisprudence.” In other words, many freedoms taken for granted in the United States are different in other countries, and the Court should not simply pick and choose how America should “conform to the laws of the rest of the world.” Though the Court has not given itself the power to sign international treaties as Scalia suggests, it does go against Alexander Hamilton’s expectations that it should have “neither force nor will, but merely judgment.” By agreeing with international law without finding a direct consensus, the Court “proclaims itself the sole arbiter of our Nation’s moral standards.” This judicial activism, while well intentioned, “pre-empts the democratic debate through which genuine consensus might develop.” Justices Scalia and O’Connor rightly employed judicial restraint by insisting the Court find a clear consensus before making a decision that could alter an aspect of American society.