ON MARCH 1, 2005, in a case titled Roper v. Simmons, the United States Supreme Court held, by a five to four majority, that the Eighth Amendment’s proscription of “cruel and unusual punishments” bars imposition of the death penalty on those aged between 15 and 17 years at the time they commit a capital crime. The crime that gave rise to the Court’s ruling was summarized in Justice Anthony Kennedy’s majority opinion:
Simmons and an accomplice carried out the crime just as he had envisioned it. They threw a woman named Shirley Cook off a railroad trestle, securely bound so that she drowned in the river below.
The most controversial aspect of the Roper decision has been its reliance on foreign law. In recent years, the Court has, on several occasions, bolstered its opinions by arguing that its conclusions are consistent with public opinion in countries other than the United States. This form of reasoning, which has no apparent basis in our Constitution or statutes, seems to have come to full fruition in Roper.
Justice Kennedy tried to articulate a rationale for referring to the laws of other countries. It is not unfair to say, however, that his attempted rationale consists of nothing but fine words, which contain no explanation of how, why, and when the opinions of non-Americans become relevant to our Constitutional jurisprudence:
Kennedy continues:
He concludes:
Which raises two questions: Isn’t weighing the “instability and emotional imbalance of young people” exactly the kind of thing that legislatures–the peoples’ elected representatives–are supposed to do? And why, if the Court’s conclusions are based on the Constitution and laws of the United States, is “the opinion of the world community” a factor in the Court’s conclusion?
It does “lessen [the Court’s] fidelity to the Constitution” when the Court gives the actions of foreign governments priority over the text of the Constitution, the laws enacted, in this case, by the legislatures of 20 states, and the clearly expressed preferences of the majority of Americans. With all due respect to the Court’s majority, there is simply no coherent rationale for counting the “enlightened” opinion of foreign governments as a factor in Constitutional jurisprudence.
ONE OBVIOUS PROBLEM with the Court’s endorsement of a standard as vague as “international opinion” is that there is no way to know when that standard will be deemed relevant. As Justice Scalia noted in his dissent, American law, including Constitutional law, is in a distinct minority on many issues. For example, the United States is one of only six countries that permit abortion on demand up to the point of viability. Why isn’t international opinion on abortion as pertinent as international opinion on the death penalty?
In reality, of course, the “international opinion” standard is appealing to some justices precisely because it gives them unfettered discretion to pick and choose the “opinions” that should influence American law. At the end of the day, the opinions the justices are really deferring to are their own. The new standard of “international opinion” is just one more vehicle that allows Supreme Court justices to make up the law as they go along.
BUT ROPER is troubling for reasons that go well beyond the majority’s reliance on foreign opinion and practice. Just 16 years ago, in Stanford v. Kentucky, a different 5-to-4 majority held that it did not violate the 8th Amendment to execute juveniles aged 16 to 17. Roper overruled Stanford in what can only be seen as a naked flip-flop. In Roper, Justice Kennedy argued that the juvenile death penalty has become more “unusual” since 1989 because in the intervening years five states have switched from allowing to prohibiting the execution of juvenile offenders. But it is frankly absurd to argue that a practice that is approved by the legislatures and courts of 20 states is “unusual” within the meaning of the 8th Amendment. The fact that some states make a policy decision against juvenile execution through legislative enactment hardly implies that such a policy decision is Constitutionally mandated.
IN REALITY, the difference between Stanford and Roper does not lie in the number of states that, at the relevant time, permitted the execution of juveniles–25 versus 20–but rather in the composition of the Supreme Court itself. What made the difference in the outcome was that Justice Kennedy changed his mind. In 1989 he voted with the majority, holding that execution of juveniles was not Constitutionally prohibited. Last week, he voted the opposite way. The Constitution didn’t change; Anthony Kennedy did.
Soon there will be a vacancy on the Supreme Court; President Bush will nominate a new chief justice. Among other things, Senate Democrats will likely demand that the nominee pledge fealty to stare decisis–the legal doctrine holding that with rare exceptions, issues once decided should stay decided–as it relates to Roe v. Wade. No Democrat will complain about the abandonment of stare decisis in Roper. That doctrine has been consigned, apparently, to the ever-growing list of principles that can only be understood as one-way streets.
It is often said that our government is one of laws, not of men. The Roper decision shows how far we have abandoned that vital principle. Indeed, in a sense we have turned it on its head. The Founders envisioned the judicial branch as the guarantor that we would have a government of laws; they saw the judiciary as a bulwark against the usurpation of authority by “men” in the other branches. See, for example, Hamilton’s Federalist No. 78, where he wrote: “[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter.” The Founders failed to foresee, unfortunately, an era in which unelected, unaccountable judges ignore the written words of the Constitution and the laws, and impose their own policy preferences by fiat.
John Hinderaker is a contributor to the blog Power Line and a contributing writer to The Daily Standard.
