It does seem to be an editorial from someone not at CNN, but they have it posted, so color me impressed.
ETA: May God bless Scalia's crusade against activism on the court. I pray that he finds some traction, and is able to convince many of the uselessness of an "evolving" constitution.
The Supreme Court and the juvenile death penalty
A morally good result, supported by less-than-convincing reasoning
By Edward Lazarus
Special to CNN.com
(FindLaw) -- This week, in Roper v. Simmons, the Supreme Court declared the death penalty for juvenile offenders to be unconstitutional. In so doing, the Supreme Court brought the United States into line with the international community. (CNN coverage)
Surely, that is a result to be applauded.
Yet Justice Anthony Kennedy's bare 5-4 majority opinion serves as a sobering reminder that laudable results do not always coincide with a convincing jurisprudence. The Court's result may be laudable, but its reasoning fails to persuade.
As it has for more a generation, the legal debate over the death penalty is exposing the unbridgeable divisions inside the Court. At the same time, it is also exposing the Court's inability to match its profound, morally persuasive activism in this area, with convincing reasons for imposing its will on the law.
The background for Roper
In deciding Roper, the Court was not writing on a clean slate. In 1988, in its 5-4 decision in Thompson v. Oklahoma, the Court had struck down the death penalty for juvenile offenders under the age of 16. Then, the next year, in another 5-4 decision, Stanford v. Kentucky, the court ruled that states could impose the death penalty on 16 and 17 year-old offenders.
Thus, the question for the Court in Roper was, in essence, whether to overrule Stanford - and hold that eighteen-year-old offenders are the youngest who can face the death penalty. And the Court so held.
In all these cases, the Court was called upon to interpret the Eighth Amendment's ban on "cruel and unusual" punishments. How does the Court decide whether a particular punishment qualifies as cruel and unusual? The Court has long held that the answer must be determined by reference to "the evolving standards of decency that mark the progress of a maturing society." (However, originalist justices, such as Antonin Scalia. have never agreed.)
But that only leads to another question: How is the Court to measure and discern our "evolving standard of decency?" Are there objective standards to be consulted? Or is this a matter of judges to decide based on their own subjective view?
Defining 'evolving standards of decency'
In the late 1980s, the search for objective standards to govern this area of law went into high gear.
The more conservative justices felt that the "evolving standards of decency" test had simply become an excuse for liberal justices to rewrite the Constitution according to their own personal views of right and wrong -- regardless of constitutional text, history or precedent that might undermine the results the liberal justices preferred. After all, by talking about "evolving" standards, the test seemed to be profoundly anti-conservative - it explicitly encouraged a departure from past thinking.
Conservative justices worried that unless objective standards were devised, liberal judges, based on their personal, subjective views, would push death penalty jurisprudence toward more and more liberal standards - with abolition awaiting at the end of the "evolution" process. So the conservatives came up with an objective test -- but they could not command a majority in support of it.
In Stanford, a four-justice plurality said that "evolving standards of decency" should be measured exclusively by reference to society's views as reflected in legislative enactments and state practices. In other words, in the view of four Justices, the Court's job, when it came to the death penalty, was not to conduct an independent assessment of standards of decency. It was simply to defer to the judgments of elected legislatures in the states.
No wonder this purely objective approach did not command a majority. If adopted, it would have reduced the Court to bean counters. The Justices would have had little to do in death penalty cases - perhaps the most morally troubling and wrenching of all the cases before the court - but to keep a tally: How many states allow the juvenile death penalty for 17 year olds and how many don't? How many allow execution of the mentally retarded and how many don't?
Of course, the justices still would have debated about counting methodology (for instance, how do you count the states that don't allow the death penalty at all?). And they still would have argued about what level of disapprobation constitutes a sufficient national consensus to deem a practice antithetical to our evolving standards of decency: Is it enough that a majority of the states allow a certain death penalty practice? Or is a supermajority needed and, if so, how big of one?
But in the end, the approach would have eliminated most subjective components from the Court's Eighth Amendment jurisprudence. Once the requisite number of states for a "consensus" had been set, and a way to count anti-death-penalty states had been chosen, the Court could have been replaced by a computer program. Of all the areas of law, this one, especially, should not be reduced to machine-like calculation.
Thus, in Stanford, Justice Sandra Day O'Connor rightly balked at the idea of giving up her right as a judge to perform some independent assessment of public morality, rather than simply being reduced to a bean-counted. And since the four dissenting justices agreed with her on this point, at least, O'Connor's became the prevailing view.
Independence and bean counting
And so matters stood -- until the Court's decision two years ago in Atkins v. Virginia. There, the Court declared it unconstitutional to execute the mentally retarded. Moreover, the majority opinion made clear that while the Court would still be making an independent judicial assessment of the challenged practice, as Justice O'Connor had insisted, it would also use the state by state bean-counting approach.
A petitioner, then, could avoid the death penalty if the state imposing it was out of step with the others -- and perhaps even with international opinion. But he could also avoid the death penalty if the justices found the practice otherwise inconsistent with their individual -- and inherently somewhat subjective -- senses of what constituted "evolving standards of decency."
Atkins itself applied this very approach. In the 1989 case Penry v. Lynaugh, the Court had considered the constitutionality of executing the mentally retarded and had concluded that a national consensus against the practice did not yet exist. The question in Atkins was whether such a consensus had developed since 1989.
The Court said yes -- and bean-counting played a prominent role in its analysis. In Atkins, a 6-3 majority, including both Justice O'Connor and Justice Kennedy, discovered a sufficiently marked trend in the states towards abandoning execution of the mentally retarded to find that a "national consensus" had emerged.
Independent of these statistics, the Court also found the death penalty, as applied to the mentally retarded, unconstitutional for another reason: Because the mentally retarded are inherently less responsible for their acts, to execute them would be to impose a punishment unconstitutionally disproportionate to the moral responsibility of the perpetrator.
In short, in Atkins, a majority -- while still explicitly endorsing and applying the principle that judges had to exercise their own subjective judgment when evaluating Eighth Amendment claims -- also brought objective criteria back into the mix.
But this time, ironically, the use of objective criteria -- once conservatives' favored approach -- led to a liberal result: The mentally retarded could not be executed, even if they had committed heinous crimes.
The Roper decision
The Court's decision in Roper was basically an application of the standard Atkins had set out. For this reason, Roper is not just an important decision regarding capital punishment -- though it is that.
It is also an important opinion in the context of the larger debate -- both inside and outside the Court -- about judges subjectively imposing their value judgments on the law, even if democratic majorities in a given state (or even nationally) may disagree with those judgments. This issue is at the center of the Court's savage debate over abortion and gay rights -- and the same rancor is now at work in the area of the death penalty.
In his opinion for the majority in Roper, Justice Kennedy runs through the statistical case for an emerging national consensus against the juvenile death penalty. But as Kennedy seems to realize, the statistical case is not that strong - certainly not as strong as in Atkins.
The Atkins Court was able to rely on the fact that, after 1989, no state had gone on record affirming its desire to execute the mentally retarded. But the situation with juvenile offenders is rather different - and that likely made Roper a harder opinion to write. Two states recently reaffirmed their desire to execute particularly culpable juvenile offenders. Twelve states still have juvenile offenders on death row. So is there really a definitive national "consensus" against the juvenile death penalty? Arguably not.
Perhaps for this reason, Kennedy does not hinge the Court's decision on the statistics. Instead, the decision rests mainly on the majority's independent judgment that, because juveniles (much like the mentally retarded) tend to be less responsible for their acts, it would be unconstitutionally disproportionate to impose the death penalty on juvenile offenders.
Kennedy admits that drawing a bright line at age 18 is an imperfect solution to this constitutional problem - after all, some 17 year-olds are particularly mature and some 18 year-olds particularly immature. But he points out that 18 is the age at which society tends to draw the line in areas such as voting and military service - so why not here too? Some line must be drawn, after all; states can't constitutionally execute ten-year-olds.
Justice Scalia's rage
As Justice Antonin Scalia rages in his dissent, the majority's approach raises some vexing difficulties. Indeed, it's arguably anti-democratic, anti-states' rights, and anti-jury: By declaring the death penalty categorically unconstitutional as applied to juvenile offenders, the Court is depriving every state legislature of its right to have juries decide, on a case by case basis, whether an individual juvenile offender is sufficiently morally culpable to warrant the death penalty.
A power that once belonged to state legislatures and local juries, now rests in the hands of the U.S. Supreme Court alone. And the Court has decided to adopt a blanket rule against even executions the legislatures and juries surely would have approved - for instance, in the event of a long series of premeditated rape-torture-murders by a seventeen-year-old.
The majority justifies this disempowerment of elected officials and juries largely based on scientific studies suggesting that juveniles are, generally speaking, decisively less responsible for their conduct. But, as Scalia points out, the weighing of such scientific evidence in the context of debating and making social policy is exactly what we expect legislatures to do - yet the Court has chosen to usurp that function.
For Justice Scalia, this usurpation captures everything that is wrong with a Court dominated by Justices O'Connor and Kennedy. Whether the issue is abortion or gay rights or the death penalty, these two justices believe in the idea of exercising independent judgment about what liberty means, or what punishments are fair and just. In all these areas, as in the death penalty area, Scalia finds their approach anti-democratic, anti-states' rights, and just plain infuriating.
The role of justices O'Connor and Kennedy
Justices O'Connor and Kennedy may not agree about how to apply this kind of judicial discretion in individual case. (In fact, in Roper itself, they disagreed). But they are united in their commitment to the principle behind it: That the judiciary can second-guess legislative judgments where inherently malleable constitutional limitations -- such as the Eighth Amendment's ban on cruel and unusual punishments -- allow them do to so.
In this sense, the ghosts of Justices Earl Warren and William Brennan have come back to inhabit this Court with a vengeance. With remarkable frequency, given the innate conservatism of its membership, it is a Court eager to accept the challenge of moral governance -- and one that is relatively unconcerned with problems of doctrinal justification and democratic theory.
To a significant degree, this development is attributable to Justice Kennedy's emergence as a moralist judge. This evolution has been most apparent in recent years, but it is hardly new; it dates back more than a decade, to Kennedy's 1992 decision to vote against overruling Roe v. Wade in Planned Parenthood v. Casey.
Especially in the last few years, Justice Kennedy seems to have decided that, when it comes to the great social issues that come before the Court, he wants to be on the right side of history - and he wants the Court as an institution, to the extent he can control it, to be there with him.
Given Kennedy's conservatism, his sense of where history is headed will not always coincide with that of the liberal justices whose methodologies he increasingly adopts. But in many areas of law, he is now the Court's moral center - and as he goes, so goes the law.
So just as conservatives have found their death penalty bean-counting turned on its head, so too may liberals someday find their own, more subjective methods, turned toward results of which they disapprove. Justice Kennedy is certainly a moralist - but we should not forget he is also a conservative (albeit libertarian) moralist, too.
Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court."