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.