The Blue State Court
Wall Street Journal, Page A-16
Wednesday, March 2, 2005
Supreme Court Justice Anthony Kennedy has
many attributes, but judicial modesty isn't one of them. His latest legislative
diktat in the guise of a legal decision - issued yesterday in Roper v.
Simmons - overturns 19 state laws on behalf of a "national consensus" that
he alone seems to have defined.
Yesterday's ruling concerned a death penalty case, which
isn't something we usually write about. But what makes Roper notable, and
worthy of wider debate, is the way it symbolizes the current Supreme Court's
burst of liberal social activism. From gay rights to racial preferences and now
to the death penalty, a narrow majority of Justices has been imposing its own
blue state cultural mores on the rest of the country. We suspect it is also
inviting a political backlash.
No doubt most Americans will concede that the death penalty
for 16- and 17-years-olds is a difficult moral question. That is why different
U.S. states have different laws on the matter, and we'd probably oppose such
executions if we sat in a legislature. But rather than defer to the will of
votes as expressed through state legislatures and at least two ballot
initiatives (in Arizona and Florida), Roper imposes the view of five
justices that the execution of 16- and 17-years-olds is both wrong and
unconstitutional. As Justice Antonin Scalia writes in a dissent that is even
more pungent than his usual offerings, "The court thus proclaims itself sole
arbiter of our nation's moral standards.
Mr. Kennedy rests his decision on his assertion that American
society has reached a "national consensus" against capital punishment for
juveniles, and that laws allowing it contravene modern "standards of decency."
His evidence for this "consensus" is that of 38 states that permit capital
punishment, 18 have laws prohibiting the executing of murderers under the age
18. As we do the math, that's a minority of 47% of those states. The dozen
states that have no death penalty offer no vies about special immunity for
juveniles - and all 12 permit 16- and 17-year-olds to be treated as adults when
charged with non-capital offenses.
This idea of invoking state laws to define a "consensus" also
runs up against any number of notable Supreme Court precedents, including Roe
v. Wade. When Roe was decided in 1973, all 50 states had some
prohibition against abortion on the books. But never mind.
Even weaker is the Roper majority's selective reliance
on scientific and sociological "evidence" - the kind that legislatures (and
juries) are used to weighing. The American Psychological Association claims in
this case that killers under the age of 18 are incapable of making appropriate
moral judgments. But this is the same organization that has told the Court in
the past that teenage girls are mature enough to decide whether to have an
abortion without parental input. Which is it?
Perhaps the most troubling feature of Roper is that it
extends the High Court's recent habit of invoking foreign opinion in order to
overrule American laws. "It is proper that we acknowledge the overwhelming
weight of international opinion against the juvenile death penalty," Justice
Kennedy writes. We thought the Constitution was the final arbiter of U.S. law,
but apparently that's passe.
In invoking international "opinion," however, the majority
also seems rather selective. Justice Kennedy cites the United Nations Convention
on the Rights of the Child, which outlaws the juvenile death penalty. But that
Convention also prohibits imprisonment without parole for juvenile offenders - a
penalty favored by some, if not all, 50 states. Is the Court ready to sign on to
that international standard too?
Such inconsistency suggests that the real reason this Court
has taken to invoking "international opinion" is because it is one more
convenient rationale that the Justices can use to make their own moral values
the law of the land. And it is nor surprise that Mr. Kennedy's majority opinion
is joined by the four liberal Justices who have long been on record as opposing
the juvenile death penalty - Ruth Bader Ginsburg, Stephen Breyer, David Souter
and John Paul Stevens. In Roper they finally found a case, and an
inventive legal hook, on which they could lure Justice Kennedy.
If there is a silver lining to this case, it is that it
probably disqualifies Justice Kennedy from any consideration to be promoted
Chief Justice when William Rehnquist resigns. Some in Washington, and even some
in the Bush Administration, have floated this possibility as a way to ensure an
easy Senate confirmation. But we doubt that the red state votes who reelected
President Bush, and gave Republicans a larger majority in the Senate, did so to
promote a Justice who thinks their values are an affront to "standards of
decency."