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Roper, or Justice Kennedy Communes With The Innocence of Youth

One positive thing about being sick: while waiting to see the doctor, I could print out a copy of the Supreme Court's decision in Roper v. Simmons, which invalidated statutes allowing for the execution of those under 18. For those of you who haven't read it yet, the majority opinion is classic Kennedy: affirmation of the supremacy of the judiciary as moral arbiter, selective use of social science, and the feel-good assurance that this is all OK because it'll make us more like Europeans. As Scalia puts it in his dissent, the laws of several states have now been overturned through the awesome power of "the subjective views of five members of this Court and like-minded foreigners."

The majority opinion adds preposterousness upon preposterousness to try to make its decision match up with some kind of rule of law. First they rely on changed laws in a handful of states to come up with a "consensus" on "evolving standards of decency." Prof. Orin Kerr puts paid to this idea fairly well. Kennedy then spends a few pages gnashing his teeth over the fact that just two days ago, the United States was alone in the world in allowing the juvenile death penalty: all hail international law and the UN Convention on the Rights of the Child. Nothing I can say to this is more appropriate than Scalia's dissent, on pages 19 and 20, which highlights just how Kennedy and his ilk pick and choose selectively those human rights which are matters of "civilized nations" and those rights on which they're happy to let the U.S. stand alone.

(Best quote on the international law aspect comes from Will Baude: "But I must say that looking to treaties that the U.S. has refused to sign borders on genuine chutzpah.")

A legal analysis of the case would be pointless: there is no "neutral principle" anywhere within the majority opinion that gives it predictive value in a legal sense. How can you tell when a "national concensus" is forming if five states can form it? When will "international opinion" play a role in evaluating our statutes? And as Scalia points out, if the court honestly believed its view on the need for bright-line rules and the immaturity of minors, then its abortion jurisprudence wouldn't require judicial review for minors who wish to have abortions without parental consent.

But I'm being churlish. Why do we need consistency here? We're making law!

No, analysis of Roper is much more interesting as what it is: a political opinion. Again, Professor Kerr highlights the new strategy this gives to death penalty opponents:

One interesting part of Roper is the incentives it creates (together with Atkins v. Virginia) for those seeking judicial abolition of the death penalty. Roper and Atkins tell capital defense litigators to delay their cases for as many years as possible. Drag out the appeals for a long, long time. During that period, have activists try to encourage legislators in a few select states to enact new legislative restrictions on the death penalty. It doesn't matter if those restrictions have any actual effect on how cases are charged; bans in states that do not actually bring any death penalty cases are fine, as the real audience is the Supreme Court. Years down the road, you can then use the new legislative restrictions in a few states as "objective indicia of consensus" that the practice of using the death penalty in such cases is impermissible. In effect, the changing practice in a handful of states can be bootstrapped by the courts into a constitutional ban that applies to all states.

In the same vein, Waddling Thunder points out that death penalty opponents who also have some respect for federalism may now not wish to overturn the death penalty in their state, lest it be interpreted as part of an "evolving consensus."

The truly pernicious thing about this decision, however, is that it is final, a victory cemented in stone. Suppose, for instance, that tomorrow Justice Kennedy were to suffer a freak hot tub and granola accident that misaligned his chakras such that he no longer felt able divine the moral consciousness of our society. When he steps down and is replaced by... let us say, for the sake of argument, Robert Bork, how will a case ever come to the court allowing Roper to be reversed? And, if it does, how will indicia of a "evolving concensus" be presented? Perhaps enough upstart states pass laws allowing 16-year-old executions--each of which is struck down--as to overwhelm Kennedy's analysis? Or perhaps we should just sit back and see if the international concensus dissolves? After all, those nations upon which Kennedy relies don't have our limitations: they can withdraw from the UNCRC, but we cannot withdraw from the Supreme Court.

I'm sure those who see this as a moral victory are undisturbed by the one-way rachet that's evolved in cases like Lawrence and Roper. So let me disturb them a bit. One's liking of a rachet is directly proportional to who holds the handle. Now consider this: George Bush has three and a half years left in office, the current Supremes are only getting older, and there's no assurance that the Democrats win in 2008. Nominations are a comin', and Justice Kennedy has just upped the stakes.

When the next Supreme Court nomination comes before the Senate, why should Republicans reject the "nuclear option"? If control of the Supreme Court allows an administration to cement its policy opinions long after the administration is gone, why not pack the court with young, highly conservative justices? Better yet, why not pack them with justices whose jurisprudence is more conservatively "pragmatic" and less bounded by ideas like originalism that might constrain them in inconvenient cases? With the stakes this high--the possibility of cementing a conservative bias into constitutional law for a generation--why show restraint?

When people ask why I support the Federal Marriage Amendment, it's this kind of ruling that springs to mind. Say what you will about "enshrining hatred into the Constitution", it does say one thing: change too much through the courts, and the people will constrain your power. It encourages citizens to debate and convince their fellow citizens, not merely place their faith in lawyers and the legally-educated.

In the meantime, let's remember what this case was about:

Petitioner, Christopher Simmons, was born on April 26, 1976. On September 10, 1993, when he was approximately seventeen-years and five-months old, petitioner was arrested for the murder of Shirley Crook. Following a botched robbery attempt, petitioner kidnapped Ms. Crook, bound and gagged her. Petitioner walked Ms. Crook down a railroad trestle, bound her more, and pushed her, while still alive, over the trestle and into the Meramec River. Prior to the robbery, petitioner stated to his accomplice that they could commit a robbery and murder and get away with it because they were juveniles.

(State ex rel. Simmons v. Roper, 112 S.W.3d 397, 419)

Forget what I said about Kennedy's jurisprudence having no predictive value. Immature as a 17 year 5 month male might be, he wasn't that far off the mark.


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» Stare indecisis from New World Man - Matt? Matt's not here
JurisPundit notes that the principle applied in Roper is essentially unchanged from the one applied in Stanford, which Roper purportedly overruled. In determining whether the juvenile death penalty is a "cruel and unusual punishment" the Court used the... [Read More]

» Ratcheting back Roper? [UPDATED!] from Crescat Sententia
Anthony Rickey has a long post up about the recent Roper decision, which I like not just because it agrees with much of my own. But one thing he said does motivate comment: The truly pernicious thing about this decision,... [Read More]

» Ratcheting back Roper? [UPDATED! TWICE!] from Crescat Sententia
Anthony Rickey has a long post up about the recent Roper decision, which I like not just because it agrees with much of my own. But one thing he said does motivate comment: The truly pernicious thing about this decision,... [Read More]

» Ratcheting back Roper? [UPDATED! TWICE!] from Crescat Sententia
Anthony Rickey has a long post up about the recent Roper decision, which I like not just because it agrees with much of my own. But one thing he said does motivate comment: The truly pernicious thing about this decision,... [Read More]

» Impeach this judge! from Vote for Judges
Anthony at Three Years of Hell: It's preposterous! [Read More]


"Puts paid"? I always gotta look up something when I come 'round....
I forget: Have you taken Monaghan yet? There's a ... thing, with the difference between con law and federal common law, that's kind of important here. Namely, international law belongs in one of them. But interesting post. Surprised you didn't focus on O'Connor's dissent; it seemed to me she ran circles 'round the majority. Well, except in getting the outcome.
colloq. phr. to put paid to: to deal finally or effectually with (a person); to terminate (aspirations, hopes, etc.); to eliminate or put an end to (something). From the OED. Apparently I need to figure out which of my colloquialisms I got from where, and temper them to my audience. English readers probably don't get the expression "I'm going to beat you like a red-headed stepchild" either. And no, I've not taken Monaghan: it's on the slate for next year. Functionally, I don't think the international law matters that much in cases like Roper. Kennedy likes to bring it in selectively when it suits him. It's more a marker of "we're making stuff up as we go along here" than a real argument. If a solid concensus had emerged, then the international one would hardly matter; if it has not, then international law is mere window dressing to Kennedy's willfulness.
As someone who opposes capital punishment, it is hard for me defend Scalia's dissent in Roper. But I think he has a really good point. Why is the SC using International standards to base US law? I also believe the post points out corectly that if Kennedy uses some international standards and not others it lacks judicial neutrality, which is unfortunate and unjust. I believe the court may have overstepped its role. If capital punishment is deemed constitutional, shouldn't the legislature determine an appropriate age limit.
Aaron, the Supreme Court has every reason in the world to use international law in their opinion. Not only is it condoned by the Constitution but the court has done it since the 1800s. People who oppose the practice are thinking about this wrongheadedly. Unfortunately, they seem to really miss the mark this time.
Look, the evolving consensus and "let's count the states" was Scalia's idea. I think it's stupid too, and I think Kennedy kind of bullshits it, but Scalia bullshits it worse with the argument that states that outlaw the death penalty just don't count.
OF COURSE states that outlaw the death penalty don't count. If the death penalty isn't entirely illegal as a matter of the 8th Amendment, those states are "wrong." That aside, those wholly opposed to a practice can tell us precisely nothing about where the line should be drawn. Why would we assume that Amnesty International has some deep wisdom into whether 20 lashes or 30 is a good punishment? Obviously they're going to pick the lesser number, and obviously it's not because they have a principled reason to believe 20 is legitimate but not 30.
TRickey, you're going to have to explain to me why so many people are really upset about this decision. Used to be you couldn't execute people for crimes committed when 16, now it's 18---what's the big deal? I can't imagine there's a lot of people clamoring for it, so ... whence the outrage? Well, not "outrage," really, but the concern seems disproportionate to the actual consequences.
I had no idea that the court has been using international law since the 1800's. That certainly changes the dynamic. But, Curtis, help me out, where is it condoned in the Constitution?
Aaron--- The word "cruel." But I kid. Seriously: That's an excellent question for a reason I'm going to guess you don't really have in mind. I can't remember if the Rules of Decision Act authorized the creation of a federal common law or whether it was implied (I'm guessing the latter), so, literally speaking, I don't know the answer. But I can be a little more responsive: Some decisions by the Court generate a federal quasi-constitutional common law, rather than constitutional law per se. Miranda warnings, for example: The precise wording can't be seen to be compelled by the Constitution, but the Court sort of came up with it as a workable test. And federal common law has always drawn on the way the Germans interpret their contracts, the way the Chinese allocate water rights, etc., as persuasive authority. Now, what if this is actual constitutional law, rather than federal common law? Well, notice that the Eighth Amendment jurisprudence is remarkably common law-y, employing general sniff tests & the like. And a lot of customary and informal rules go into determining what the 8th Amdt. means, as well as formal legal sources. (One could imagine what a quandary it would be to determine what "cruel and unusual" meant, if you couldn't look to comparative and extra-legal sources.) So tho' I was joking, it rather is authorized by the Framers' use of a comparative standard in the Eighth Amendment. But keep in mind this is rather minor: International law (outside of treaties to which the US is a party) is at best only persuasive, not binding, authority. So it's only American law so far as an American judge finds it reasonably compelling. Which is exactly as far as, say, the philosophy of the movie The Matrix is law.
What I was getting at, and maybe I missed your point, which all seem very solid- is that using International standards in written decisions isn't condoned explicitly by an body of law. Even if only dicta and not binding it still could be used to influence future decisions.(which may not be a bad thing) The biggest problem is teh majority could have stood on solid ground without going to outside sources. By using international standards Kennedy's decision easily became a target. The decision may have hurt the anti-capital punishment movement.
Not justified by a body of law? Sure it is. Court precedent. There it is. Yes, I'm being cute. But keep in mind that judicial review isn't explicitly authorized by the constitution, but only precedent. So to object that a practice has no surer footing than that established by Marbury v. Madison isn't a very troublesome objection at all. Um, yes, as far as it goes, but I don't think it goes very far. Why do people find it appalling that an American court would look to international sources for comparisons? I mean, if I could make an argument based on either moral intuitions, or moral intuitions plus observations from the international community, why would the second alternative be more objectionable than the first? I have to admit, I'm quite puzzled by the reaction. I'd hate to conclude that it's no more than some people just don't like internationalism, and if the French do it one way then it cannot be right, but there are days....

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