Angry New Yorker

Wednesday, March 02, 2005
The Supreme Court Does It Again...

The Supreme Court yesterday changed the laws of nearly 20 states by ruling in Roper v. Simons (available here PDF) that the death penalty for anyone less than 18 years at the time of the crime was a violation of the U.S. constitutional 8th Amendment. My opinion of J. Kennedy has changed dramatically in the past three years. Somewhere in the last two years he's gone squishy, at least based on the broad (queue John Williams music) tautological language he's taken to using in his opinions, such as:

These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.
Sounds great. Brings a patriotic tear to one's eye. But what does that mean again when it comes to the death penalty for those younger than 18? Those supporting Kennedy's viewpoint frame the issue along the lines of the following:

Can you believe Republicans defend the idea that states should kill children, in the name of justice? If ever there was proof that we need help. And the Republicans talk about values. Feh. Values to kill children.
Knee-jerkers like this miss the issue completely, looking, as they do, at the case not from the standpoint of law, but the "children." Let's look then, shall we? What the 17-year old Christopher Simmons "child" in the case did turns one stomach. He planned a murder a head of time; bragged that since he was a minor nothing would happen (though he didn't know Missouri allowed the death penalty for 17-year olds); broke into Mrs. Crook's home, kidnapped her; bound and gagged her; and drove her to a railroad bridge where he threw her into the Meramec river below where she drowned. Sounds like something the "children" you know would do? I sure hope not.

While I certainly don't think teenagers should be executed willy-nilly, those who embraced Kennedy's majority opinion (joined by Breyer - good guy, but misguided as to int'l law, Stevens - Mr. Standing, and Souter & Ginsberg - the Court's Salieri's) view the Court as a broad court of equity. It's really not. Nor should it be.

In this case, I believe the death penalty should be an option left to the states and the jury system to impose - rather than removed entirely from the democratic process by the Court ruling it categorically unconstitutional. Why? Because there are, as O'Connor and Scalia noted, instances of depravity committed by those younger than 18, who possess the maturity of thought and mind, that it is neither cruel, nor unusual punishment to impose the death penalty. Further, J. O'Connor and J. Scalia's dissent pegged the issue correctly and, in Scalia's case, devastating. J. O'Connor notes:

The Court's decision today establishes a categorical rule forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense. Neither the objective evidence of contemporary societal values, nor the Court's moral proportionality analysis, nor the two in tandem suffice to justify this ruling.
While Scalia unloads on the majority with both barrels:

In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "[t]he judiciary . . . ha[s] neither FORCE nor WILL but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." Id., at 471. Bound down, indeed. What a mockery today?s opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years -- not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed.
It's another unfortunate decision from the nation's highest federal court.

Scalia's dissent is vintage Scalia: fierce and absolutely correct. Critics call Scalia harsh, an ideologue, and an extremist. Far from it. Scalia can definitely be blunt, but he's a fierce believer that the Court's powers are fundamentally limited, and that as many decisions as possible should be left to the two elected branches of government in order to best preserve democracy. I agree. An alternative would be to allow the Supreme Court to issue non-precedential opinions -- deciding a case without binding future parties as to the decision. It's a thought to keep in mind.

UPDATE: Prof. Eugene Volokh, of The Volokh Conspiracy and UCLA Law School, and I fundamentally agree on the Roper decision, as he notes:

I think the Supreme Court's decision holding that the death penalty may not be imposed on killers who were 16 or 17 at the time of their crimes was unsound, for the reasons that Orin has noted here, and that Justice Scalia noted in dissent. I'm not sure what I think of the execution of such killers as a policy matter, but I think Justice Scalia is right that this is not unconstitutional.
UPDATE II: Another interesting review of the Roper decision, again from the Volokh Conspiracy, but attacking J. Kennedy's view that the deterrence factor of the death penalty has little impact on teenagers, notes:
In other words, Simmons sought to induce other juveniles to participate in
his crimes by telling them they need not fear criminal prosecution. This
argument would have been unnecessary were his friends not deterred, at least
in part, by such threats. From this proposition it is but a small step to
assume that the severity of the criminal sanction -- death as opposed to a
set jail term -- could have some deterrent effect on the margin. This does
not mean that capital punishment for juveniles is a good idea, but it does
suggest that Justice Kennedy may have been a bit too quick to dismiss the
potential for deterrence. Indeed, his own recital of the facts should have
raised a red flag on this point.

Read the entire post here.

UPDATE III: John Hindracker, of Powerline, has a guest essay at The Weekly Standard on the Roper decision entitled A Government of Men, available here.

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