SCOTUS is off-base, again

The United States Supreme Court today ruled, in an 5-4 decision with the majority opinion authored by Justice Anthony Kennedy, that it constitutes cruel and unusual punishment, in violation of the Eighth Amendment, to apply the death penalty to minors, even though only fifteen years ago the Court held that it was a constitutional practice. For those not keeping score closely, there have been exactly zero amendments to the Constitution affecting the Eighth Amendment in the past fifteen years, so the Constitution hasn't changed. What has changed, according to Justice Kennedy, are "'the evolving standards of decency that mark the progress of a maturing society' to determine which punishments are so disproportionate as to be cruel and unusual." This is, quite frankly, a shabby way to interpret the framework document.

Kennedy's shabbiness does not end there, however. In one of the most oft-cited portions of the opinion already in news stories, Kennedy states, "When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity." Potential to attain a mature understanding of his own humanity? These words are cold comfort to the family of the woman who, in the Court's words, suffered the following fate at the hands of this seventeen and a half year old defendant: "Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below. . . . Simmons, meanwhile, was bragging about the killing, telling friends he had killed a woman 'because the bitch seen my face.'" What about a mature understanding of her humanity?

Kennedy continues the abhorrent practice of citing to foreign law and practices to interpret the meaning of the United States Constitution, a practice he is chastised for by Justice Scalia in dissent: "What these foreign sources 'affirm,' rather than repudiate, is the Justices' own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court's parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. 'Acknowledgment' of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court's judgment -- which is surely what it parades as today."

Kennedy also cites as authority for today's decision the International Covenant on Civil and Criminal Rights, a treaty the United States ratified with the following reservation: "The United States reserves the right, subject to its Constitutional restraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crime committed by persons below eighteen years of age." (Emphasis added.) The majority also uses as authority the United Nations Convention on the Rights of the Child, which it acknowledges the United States has not ratified, and is therefore not a party. These sources do not add to the force of the Court's arguments, but detract, as the failure of the United States to join, or to join as to a specific portion, constitutes evidence that there is not an evolving consensus against capital punishment for juvenile offenders in this country.

Determining which of these errors of judgment is the most outrageous is a debate that will rage, but another contender for the honor is Kennedy's praise for federalism, which Scalia termed the "parting attempt" to diminish the significance of foreign legal influence on the opinion: "The [Constitution] 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. 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." (Emphasis added.)

But there is no fealty to federalism when the decision to impose a blanket constitutional proscription against capital punishment for 16 and 17-year olds is based on the decision in the past fifteen years of four state legislatures to abolish the death penalty for juveniles. Such a practice, in effect, allows the public policy decisions of a few states to dictate to the rest of the country, via the Supreme Court, the permitted range of criminal punishments. This is not federalism. And today's decision is not sound constitutional jurisprudence.

UPDATE: By the way, who do we have to "thank" that, rather than having Robert Bork on the Supreme Court, Reagan was forced to settle on Anthony Kennedy? Arlen Specter: "I not only voted against Bork, I led the charge against him." Oh, well then, thanks SO much, Arlen. Really. You've been very helpful to the left.