Thursday, March 03, 2005

What a Difference a Day Makes

The "Roper v Simmons" case and opinion by the SCOTUS leave as many questions as it answers. A synopsis of the case and the dissenting opinions can be found here. Professor Bainbridge has several post on this decision here, here, here, and here. He is opposed to the death penalty but has a serious problem with how and why the Court came to its majority opinion.

I'm increasingly opposed to the death penalty on both pragmatic and moral grounds, but I nevertheless found much to agree with in Justice Antonin Scalia's scathing dissent from the Supreme Court's 5-4 decision striking down the death penalty for offenses committed by juveniles (text of opinion):

  • In Lawrence v. Texas, Justice Kennedy essentially said that legislatures may not base laws on moral judgments. Hence, it was unconstitutional for legislatures to ban sodomy because legislators thought it was immoral. For the majority in Roper v. Simmons, however, Justice Kennedy claims that its perfectly appropriate for the Supreme Court to consider morality in deciding whether something is unconstitutional. Could there be a clearer example of how judges have usurped the legislative function in our country? As Scalia put it:

Worse still, the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” The Court thus proclaims itself sole arbiter of our Nation’s moral standards, and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures.

  • In the past, the Supreme Court has held that someone under the age of 18 can be mature enough to make the decision to abort a baby. Yet, now, the Court says a person under 18 is too immature to be executed following a fair trial. So minors are allowed to kill, but not to be killed? What kind of logic is that? As Scalia put it:

In other contexts where individualized consideration is provided, we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations. For instance, we have struck down abortion statutes that do not allow minors deemed mature by courts to bypass parental notification provisions. ... It is hard to see why this context should be any different. Whether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.

Once again, nine old men and women in robes have elevated themselves into a super-legislature in which they have exercised privileges they deny to our elected representatives. So much for having a democracy. Indeed, at this rate, so much for having a republic.

Orin Kerr at Volokh has more and he is not a happy camper either. He writes:

Roper v. Simmons and Capital Litigation: I have just finished working my way through the opinions in Roper v. Simmons. As someone who greatly values stare decisis, I was disappointed by Justice Kennedy's majority opinion. There just isn't much there to justify overruling a 16-year-old precedent and striking down 18 state laws. I'm not sure about the juvenile death penalty as a matter of policy, but I found Justice Scalia's powerful dissent pretty tough to refute as a matter of constitutional law

There is more, read it all. The Deacon at Powerline is also looking at this SCOTUS decision and is less than complementary.

My comments yesterday about the Supreme Court's decision overturning all statutes providing for the execution of juvenile murderers focused on the Court's reliance on foreign sentiment -- or, more precisely, on the treaties that foreign governments have signed that relate to the issue. The Supreme Court's propensity to defer to what foreigners think is a disturbing trend about which we have occasionally commented. However, it is not our only, or even our primary, objection to Justice Kennedy's opinion. Indeed, I noted that the majority's reference to foreign practice is a symptom of the problem, not the problem itself. The underlying problem is that the Supreme Court is "just making it up."

He also has a view on Court nominees and the past as well as the future.

One of our local D.A.s in Randall Co., Texas has some more to add. There are two individual cases in that county that this impacts.Via the Amarillo Globe News.

Randall County Criminal District Attorney James Farren called the justices' decision sophomoric and silly.

"We don't have to draw a line," Farren said. "We can evaluate each case for the maturity of the defendant and the evidence of future dangerousness. Age does not equal maturity."

Farren said Soriano and Dickens likely will be eligible for parole soon.

Farren said the justices' decision disregards the decisions of jurors who evaluate each case and give the death penalty if appropriate.

"They don't just crank out death penalties," Farren said. "They look at it on a case-by-case basis and not simply based on a date of birth."

Farren said it's likely now older gang members will use younger gang members as "designated killers" because they won't face the death penalty.

"It just expands the pool of people who don't have to worry about the death penalty," he said.

He said other provisions in the law, like those allowing juveniles to be tried as adults and those disallowing death penalty for the mentally retarded, show that the system considers factors other than age. But this new decision shows the opposite, he said.

Current state law prohibits seeking the death penalty for those younger than 17. Tuesday's decision adds those who are 17.

Sleep tight ya'll.

UPDATE: Another view from a James Piotrowski, self described "lawyer who practices constitutional law among other things." ( is mainly involed in labor law and personal injury) states:

The phrase "cruel and unusual punishment" is inherently subjective. It's not like the S.Ct. can go looking for some objective definition of the phrase and simply apply it. For nearly 50 years the law in the US has been that "cruel and unusual" must be considered in the context of "evolving moral standards." I think this formulation reflects the reality of human moral development. What we, as a nation, were willing to do in 1791 is substantially different than what we are willing to do today.

The dispute between Justice Scalia and the majority in Roper v. Simmons has at least two distinct aspects. First, Justice Scalia disagress with the majority's method of determining whether a national consensus exists on the question of executing minors. Second, he finds fault with teh majority's consideration of international standards.

As to the first disagreement, Scalia would, in essence, disenfranchise the citizens of 12 states. He actually argues that in trying to determine whether a national consensus exists on the question whether it is ever appropriate to execute minors, that we should not even consider the opinions of citizens in those 12 states which have abolished the death penalty altogether. In Scalia's view, when we try to decide whether executing minors is within or outside the boundaries of national morals, the dispute must be resolved by ONLY considering the views of those states that believe in the death penalty. In other words, Scalia's opinion is that only 18 states both have the death penalty but prohibit exceuction of minors, while 20 states permit the execution of minors, and on that basis there's no consensus. For some reason, the other 12 states, which have concluded that it is NEVER proper to execute ANYONE simply don't matter. Since they disagree with Scalia on the very first premise (that execution is ever permissible), Scalia entirely discounts their opinion.

On the second issue, Scalia tries to do some good PR (and some horrendous jurisprudence) by finding fault with the majority for even discussing international ethical and moral standards. He actually claims that "the views of other countries and the co-called international community take center stage" in the majority's opinion. This is a complete mischaracterization of the majority's opinion. The majority looked to international standards only AFTER it had reached a conclusion as to a national consensus within America. And it looked to international standards ONLY to provide further confirmation that human moral standards on this issue are, in fact, evolving in the direction the majority asserts. If one entirely removed the majority's discussion of international standards, the opinion would reach exactly the same conclusion. Far from center stage, international opinion was a mere sideshow in the majority's opinion. Scalia delivers his scathing dissent mainly, it appears, for the purpose of casting aspersions on the majority and of providing grist for the conservative commentators' mills. Good PR, but abysmal jurisprudence.

He follows up with this:

I think your understanding of the role of the Court and of state rights is far too limited. Yes, the Court overturned the laws of 20 states that permit execution of children. But they did so based on their construction of the constitution. That is precisely their constitutional power. You may disagree with the result, but not with their right to find that certain state laws violate the constitution. That is the Court's power, and only its power. I dont' quite know what you are saying about reversing the prior opinion without reversing the prior opinion. I thought it was pretty clear they were reversing the prior opinion, and had no confusion on that front, myself. They are permitted to reverse themselves, and have done so many times. There are good reasons why they should use that power sparingly and they do, but still they have the power. Also, they aren't "making laws." They are interpreting the laws that exist. Your argument seems to assume that the law is clear and all we need do is apply it. If that were the case, we would barely need courts. The law is rarely clear, and when it is, someone will come up with a scheme to take advantage of a previously unseen ambiguity in it. Do you think "cruel and unusual" is an objective standard? If so, you are either substantially smarter or substantially less-informed than every single one of the justices to sit on the S.Ct. for the last 50 years.

The reference to international law is called dicta. The decision didn't turn on it, it has no real precedential value, it is more in the nature of external verification of an opinion already reached.

As to a bio, you can just call me a "lawyer who practices constitutional law among other things."

James just clarified his practice "Tom, I don't actually do any personal injury law as you've stated on your blog. You are correct though that I mainly practice labor law. Wouldn't want to mislead anyone as to my practice areas, which are mainly labor and employment law, with a healthy dose of constitutional law. I don't presently have any personal injury cases, and it's been a long time since I did."