The Political Spectrum

But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question. Planned Parenthood v. Casey, 505 US 833 (1992)
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Unconfirmable has said in many less words than I am about to use exactly what I think of the decision in Roper v. Simmons. Kennedy makes me physically ill. Who would have ever thought that there could possibly be a more repulsive Kennedy in the United States government than Ted. Well, at least Ted has no real power. Sadly, the same cannot be said from our Nation's worst Supreme Court justice.

Let me begin by stating flat out that I personally oppose the death penalty, and as such agree with the policy outcome of this case. But that's the thing. The Supreme Court's responsibility lies in deciding whether legislation comports with the US Constitution, and not as being a moral arbiter of various state policies. Kennedy's decision is awful for a variety of reasons, inculding: complete rejection of the the federalist principle, reliance on pop-psychological studies, a vague description of "evolving national stanards," reliance on "international law," and almost a complete abandonment of the actual text and intent of the Constitution.

Let's start with federalism. Kennedy approvingly cites the Missouri Supreme Court (by the way, yet another problem with this decision as the Court fails to at the very least rebuke a lower Court for completely disregarding a Supreme Court holding):

a national consensus has developed against the execution of juvenile offenders, as demonstrated by the fact that eighteen states now bar such executions for juveniles, that twelve other states bar executions altogether, that no state has lowered its age of execution since Sanford, that five states have legislatively or by case law raised or established the minimum age at 18, and that the imposition of the juvenile death penalty has become truly unusual over the last decade

So the Court is saying that since 30 of 50 states in one way or the other have repudiated the juvenile death penalty, this proves a national consensus has emerged against it. Interesting. First of all, note how 30 of 50 states represents a national consensus. 30 out of 50. Why does that number ring a bell? There's something about 30 states and the 2000 election, but I just can't seem to place my finger on it.

More importantly, even if these statistics represent a "national consensus," so what? Texas has obviously not joined the consensus. Supposedly, through the magic of the mystical 14th amendment incorporation doctrine, the federal judiciary can apply its universal standards to the particular states.

De Tocqueville warned that one of the greatest perils of democracy was centralization, a prediction that has proven to be all too true. Some critics of the Court assert that its fundamental problem is that it is anti-democratic. In some ways I believe just the opposite. All too often the Court has fallen prey to the whims of the moment, and instead of preserving the rule of law, it callously applies majoritarian prejudices to inhibit the states from observing their own laws. Even if there is a national consensus against the juvenile death penalty, the Constitution protects minorities from majority tyranny through various mechanisms, none the least of which is federalism. But don't take my word for it, just consult Kennedy's closing words in his majority opinion.

Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. The document sets forth and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity.

There's a nice bit of Yiddish that applies to Kennedy here: Chutzpah. Kennedy thus crafts an opinion that repudiates the very principle he claims instills the veneration necessary to uphold the document. And let us note the irony here as Kennedy also praises the balance of power while at the same time upholding the Court as the final arbiter of constitutional interpretation and moral standards.

We then must determine, in the exercise of our own independent judgement, whether the death penalty is a disproportionate punishment for juveniles.

Forget what other states might have to say about this issue, the Court has taken upon itself the task of deciding the morality of the juvenile death penalty. Of course, while the Court is setting itself up as a moral arbiter, one has to wonder whether this contradicts Kennedy, Souter, and O'Connor's deeply philosophical sentiment laid out in Casey:

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

And yet the Court now sees no problem with defining moral standards for the entire country as it relates to the death penalty. Fascinating. Simply fascinating. Of course, Justice Scalia brilliantly exposes the Court's error of judgement in his dissent.

But the Court having pronounced that the Eighth Amendment is an ever-changing reflection of "the evolving standards of decency" of our society, it makes no sense for the Justices then to prescribe those standards rather than discern them from the practices of our people. On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?

It only gets worse from there. The decision relies on dubious psychological studies and other sentimental claptrap that has no relevancy here. Once again, Scalia exposes the flaws in the Court's methodology.

To support its opinion that States should be prohibited from imposing the death penalty on anyone who committed murder before age 18, the Court looks to scientific and sociological studies, picking and choosing those that support its position. It never explains why those particular studies are methodologically sound; none was ever entered into evidence or tested in an adversarial proceeding.

Basically, the Court cherry-picked the scientific evidence it relied upon to determine that juveniles were not mentally developed enough to merit execution.

Speaking of cherry-picking evidence, the Court did much the same in relying on international standards in buttressing its arguments. Kennedy cites the fact that the United States is the only western nation to permit the execution of juveniles as indicitive of what, I do not know. And yet Kennedy seems to have no problem when it comes to the United States' unique position as it relates to abortion. As Scalia notes:

And let us not forget the Court's abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability.

Well, that's not fair. It's not as though Kennedy played a major role in preserving the United States as a provider of abortion on demand. Oh wait, yeah, he did. Oooh, awkward.

Simply put, citing international standards is a dubious proposition at best. As Scalia notes many other foreign nations that have the death penalty do not allow juries to consider mitigating circumstances in applying the death penalty. Moreover, it is difficult to compare Nations and apply one's moral standards to another. After all, we have all developed differently, and we have all established different customs and traditions. We can't even necessarily look to our mother country for guidance.

It is beyond comprehension why we should look, for that purpose, to a country that has developed, in the centuries since the Revolutionary War--and with increasing speed since the United Kingdom's recent submission to the jurisprudence of European courts dominated by continental jurists--a legal, political, and social culture quite different from our own. If we took the Court's directive seriously, we would also consider relaxing our double jeopardy prohibition, since the British Law Commission recently published a report that would significantly extend the rights of the prosecution to appeal cases where an acquittal was the result of a judge's ruling that was legally incorrect.

Finally, our selective application of "international standards" reveals the hypocrisy of the Courts.

The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry

It is growing more and more difficult to abide the decisions coming from this so-called "conservative" court. With each repulsive decision it becomes more and more clear why the President must be able to appoint individuals to the bench who will actually, you know, interpret the Constitution. Until then, the Nation is held hostage by a Court that has absolutely no qualms with asserting its own nationalist vision upon the entire country.