Behold your judicial masters


We've seen the Velvet Revolution in Eastern Europe bring down Communism. The Orange Revolution deposed the Russian-backed dictator of Ukraine. How about a bloodless Black Revolution, to depose our homegrown anti-democratic tyrants? You know, these guys:

Kennedy Stevens Souter

Ginsberg Breyer

They look like harmless people, but they have decided, without asking you, that the opinion of foreigners trumps the will of your state's legislature. (Not those hick Third World foreigners, naturally, but the suave elite foreigners of Western Europe.) For once, the Washington Post gets it right:

The Supreme Court abolished capital punishment for juvenile offenders yesterday, ruling 5 to 4 that it is unconstitutional to sentence anyone to death for a crime he or she committed while younger than 18.
They didn't "rule it was unconstitutional," they committed a positive act: "abolished." As in "the abolition of slavery," which was done through Congress and the state legislatures through amending the Constitution. These five unelected judges don't have to go to such arduous lengths to impose their will. With a few hands tapping on computer keyboards, and some shufflings of papers, the laws of 20 U.S. states were erased from the books.

Justice Scalia, as always the Court's best and most eloquent critic, rips the majority's decision:

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. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.
I wonder if the news reports are going to take notice of this biblical allusion from Justice Stevens:
...that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text [emphasis added].
So the first Chief Justice was like God, breathing a soul into Adam? Is this man really comparing a human judge to the Almighty?

(Read the full text here. Stevens' opinion starts on page 42, and Scalia's starts on page 64.)


One could argue rather that John Marshall sucked the life out of the Constitution by making the Supreme Court not only supreme among courts, but supreme among the branches of government.

On the merits of the death-penalty question, I'd want it to not be applied to minors, but having Federal jurists take the decision away from elected State representatives is harmful to subsidiarity.

I understand the Catholic case against the death penalty. But I don't really understand how you can say that the death penalty is permissible once you are 18, yet if you're 17 and commit mass murder (like John Malvo, the D.C. sniper team's triggerman), you won't get it.

That being said, I would be happy to have settled the matter at the state level, and I agree that the real issue here is the SC's centralizing influence on governance.

John Marshall, by instituting the practice of Judicial Review probably saved the United States. The Constitution is decidedly vague... and indeed was probably deliberately made so to allow it to be flexible (Can anyone actually create a permanently valid definition of what constitutes "Cruel and Unusual"). Such vagueness however requires the ability of the court to interpret.

I understand that people dislike the fact that the court is not a democratic instituation.. but indeed that is its strength, it can operate above the fray of politics. Without the ability of the court to trump electoral politics we might still have segregation.

Bill, can you elaborate on how judicial review "probably saved the United States"? I agree that judicial review, strictly defined, is within the purview of the court, but it seems like a stretch to say the Supreme Court, more than the ties of common tradition and love of liberty, saved the U.S.

Your defense of oligarchy is eloquent, but troubling. Far from operating "above the fray," the Court listens to politics very closely. Why else would it pay attention to elite European opinion, or take into account a treaty that was not even ratified by the United States Senate as if it were a law?

Also, it is by no means clear that segregation would have remained if the courts hadn't intervened. The military was desegregated in 1947, and blacks had made huge economic and social strides in the first half of the century. Court-imposed rulings guaranteed that changes would not come as a result of compromise, but by fiat.

Even if it were true that the courts "ended" segregation, would that justify tyrrany?

Without the ability of the court to trump electoral politics we might still have segregation.

And without that ability to trump the electorate forty-six million unborn children might have been killed in the last thirty years. Oh, wait. Nevermind.

The great problem with the Supreme Court's decision is it's reliance on determining what a "national consensus" is. This is nothing more than judicial activism. The problem with the idea of a "national consensus" is that once the Court finds one, the so-called "consensus" is effectively ossified. No later "consensus" can now develop in the opposite direction since the Court has made the current "consensus" (if it really exists) Constitutional.

The recourse to international law is troubling, but in this instance, it's not the primary rationale for the Court's decision, but a further support for a decision they've already arrived at.

My prediction is that without substantial change in its membership, the Court will abolish the death penalty entirely sometime in the next 10 years, supporting its decision through a fiding of a "national consensus" and through the mores of international law.

I think you're right on both counts, Bill. They didn't resort to international law the last time they abolished it -- that's just one more justification.

Pope John Paul has never been a strong supporter of the death penalty for anyone.

thelrd in TEXAS

I would rather have the death penalty abolished by legal, constitutional means than by extralegal, unconstitutional means.

Yes, the real issue here is not the consequence, that minors will not be executed, but rather how the majority on the court makes its decisions.

BTW, for 150 years Marbury vs. Madison was narrowly construed as permitting the court to consider the constitutionality of a power granted to it by the Congress before exercising that power. This is a very narrow ruling. Only in the last 50 years has the court claimed to interpret the Constitution in a way that binds the other branches of government.

Eric, I agree with you that it's absurd to execute an eighteen-year-old but not a seventeen-year-old who has committed the same crime. It doesn't make any sense. Of course, you and I would probably seek different solutions. I think all capital punishment should be abolished.

The problem with letting the states decide is that states like Alabama, which has executed more juvenile offenders per capita than any other state, are not going to reach the right conclusions. Their Protestant majorities are going to keep right on executing until the cows come home. Conservative Protestants do not have the same reservations about the death penalty that Catholics do, and are more than happy to just keep executing people. Juveniles, the mentally retarded, whatever.

The truth is that the world has come to the conclusion that the death penalty is a violation of human rights. We are behind here. Most nations have completely outlawed the death penalty, and rightfully so, since cases when it can be legitimately used "are very rare, if not practically nonexistent" (cf. Catechism of the Catholic Church, #2267).

I don't particularly like the way that the execution of juveniles was prohibited in this case, either. I think the Supreme Court was overreaching. But I think that ultimately this is a victory for human life, and that we should take it as a victory. Regardless of how the decision was reached, isn't it better today to not be executing juveniles than it was yesterday to be executing them? In this case, regardless of how it was done, our government did uphold the common good. I think we should be glad of that.

The last temptation is the the greatest treason,
To do the right thing for the wrong reason.

— St. Thomas a Becket in T.S. Eliot's "Murder in the Cathedral."

I see nothing in the Catholic tradition that forbids execution per se, nor the execution of juveniles, nor even those who have below-average intelligence. I have no problem with either group. My five-year-old knows that murder is wrong.

As for appealing to the opinion of "the world"...well, read what St. Paul had to say about using the world's standards to evaluate one's morality. I question whether "most nations" have outlawed the death penalty, as it is prevalent in most of the Third World. Surely you're not saying that we should ignore the opinions of the Darker People in favor of White Europe? Speaking of which, Europe did not abolish the death penalty out of Christian charity, but because their elites are anti-Christian secularists who banned the death penalty because for them, death is the worst thing because they do not believe in an afterlife.

So, does this mean that it is now illegal to execute the unborn, the a-borning and the just born?

As to revolution, do we really want to wear the same color as the Nine? (where is Glorfindel when you need him?)

These united States are, and have a right to be, independent, and have been since early July of the Year of Our Lord 1776. For the Nine to subject us to the rule of foreign powers is nothing less than treason.

Well put, Puzzled. I can't vote Gerhard Schroeder out of office, so his government's laws should have no effect on my country's.

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This page contains a single entry by Eric Johnson published on March 1, 2005 10:23 PM.

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