Wednesday, March 02, 2005
Has There been an Overreaction to the Roper Decision?
I ask my fellow bloggers and readers this with all sincerity. Having read the opinions and perused the blogosphere regarding this decision, I have to admit that while I agree with the "consensus" (I realize this is now a dangerous word) that the majority’s rationale is at best faulty and at times downright disingenuous, I’m not entirely convinced that the "end of our Constitution is near," or that drastic measures such as constitutional amendments term limited justices or legislative action stripping the Court's of jurisdiction is necessary to "reign in" the Supreme Court.
As several commentators have pointed out, this decision really only effects a few states and an even fewer number of actual persons. (See here and here) On top of that, it appears that it was becoming standard practice at the state level not to execute minors even before the Court’s decision. (See here) Now, before Paul, GC, and Unconfirmable jump down my throat and accuse me of being a "liberal sympathizer," let me reiterate that none of these practical effects in any way justify the utterly poor, entirely unconvincing, and wholly unworthy of a Supreme Court Justice reasoning that is the majority opinion. My question is more basic than that. Stated another way, is this really the case to loose sleep over, or is this more akin to a "bad facts make bad law" situation?
At the moment I’m leaning toward the latter, largely because of the apparently limited effect that this decision will have. Now that we have addressed juveniles and mentally retarded persons (Atkins), are there any other classes of people who ought to no longer eligible for the death penalty? Sure, a return to the days Furman v. Georgia and a complete abolition of the death penalty is always an option, however, realistically I don’t believe there are 5 votes on the Court for that position. Even the much maligned "evolving standards of decency" rationale has no application outside of the 8th Amendment, so the fact that it has been shown to be nothing more than a smoke screen for the personal preferences of a majority of the Justices, presents a relatively minor if not infinitesimal problem in the grand scheme of American jurisprudence. Perhaps the one area of the opinion that will have some precedential effect outside of the 8th Amendment is the discussion (note I do not use the words citation or reliance because, as I have indicated in previous posts on the use of international law, those are different) of international law and its applicability to American legal interpretation. Even this development is hardly novel and has appeared in other Supreme Court opinions outside the 8th Amendment, so it is far from certain that this discussion will add or detract in any way from this on-going debate.
Thus, I ask again, has there been an overreaction to Roper? Clearly the decision needs to be scrutinized and criticized for what it is, namely a horrible and extreme application of what Justice Cardozo called "judicial realism," and what I have taken to calling the jurisprudence of the ends justifying the means (which, by the way, in my opinion, is something that we are seeing far too often not only with respect to our law and legal interpretations, but also in the political rhetoric of both major parties these days). All that being said, maybe there is something to the "death is different" point-of-view that needs to be more carefully considered. Hopefully, if nothing else, this post will spur some interesting comments.
As several commentators have pointed out, this decision really only effects a few states and an even fewer number of actual persons. (See here and here) On top of that, it appears that it was becoming standard practice at the state level not to execute minors even before the Court’s decision. (See here) Now, before Paul, GC, and Unconfirmable jump down my throat and accuse me of being a "liberal sympathizer," let me reiterate that none of these practical effects in any way justify the utterly poor, entirely unconvincing, and wholly unworthy of a Supreme Court Justice reasoning that is the majority opinion. My question is more basic than that. Stated another way, is this really the case to loose sleep over, or is this more akin to a "bad facts make bad law" situation?
At the moment I’m leaning toward the latter, largely because of the apparently limited effect that this decision will have. Now that we have addressed juveniles and mentally retarded persons (Atkins), are there any other classes of people who ought to no longer eligible for the death penalty? Sure, a return to the days Furman v. Georgia and a complete abolition of the death penalty is always an option, however, realistically I don’t believe there are 5 votes on the Court for that position. Even the much maligned "evolving standards of decency" rationale has no application outside of the 8th Amendment, so the fact that it has been shown to be nothing more than a smoke screen for the personal preferences of a majority of the Justices, presents a relatively minor if not infinitesimal problem in the grand scheme of American jurisprudence. Perhaps the one area of the opinion that will have some precedential effect outside of the 8th Amendment is the discussion (note I do not use the words citation or reliance because, as I have indicated in previous posts on the use of international law, those are different) of international law and its applicability to American legal interpretation. Even this development is hardly novel and has appeared in other Supreme Court opinions outside the 8th Amendment, so it is far from certain that this discussion will add or detract in any way from this on-going debate.
Thus, I ask again, has there been an overreaction to Roper? Clearly the decision needs to be scrutinized and criticized for what it is, namely a horrible and extreme application of what Justice Cardozo called "judicial realism," and what I have taken to calling the jurisprudence of the ends justifying the means (which, by the way, in my opinion, is something that we are seeing far too often not only with respect to our law and legal interpretations, but also in the political rhetoric of both major parties these days). All that being said, maybe there is something to the "death is different" point-of-view that needs to be more carefully considered. Hopefully, if nothing else, this post will spur some interesting comments.
# posted by mouldfan : 1:27 PM
