Those “Evolving Standards of Decency”

We all know, if candor may be allowed to enter the discussion, that Justice Kennedy’s “argument” in Roper v. Simmons was no such thing. The Supreme Court found that executing juvenile murderers is “cruel”, because – and only because – five Justices dislike the practice. The Court cannot, by its own well-established principles, present a rational basis for its concept of “cruelty”. Cruelty is a moral category, and to decide a case on moral grounds is unthinkable for a purely secular institution, tantamount to a forbidden Establishment of Religion.

For want of the ability to consider morals, Justice Kennedy fell back on consensus. We may not be able to define or reason about “cruelty”, but the whole world agrees, or is “evolving” in a direction that will agree, that to put Christopher Simmons to death for having, at age 17 with the aid of two even younger accomplices, tied up an old woman and thrown her into a river to drown, while assuring his fellow killers that their youth would protect them from serious punishment, would violate “standards of decency”.

Let’s pass over the rather dubious empirical evidence on which the majority relied and think about their premise. If Roper v. Simmons is taken seriously, Eighth Amendment jurisprudence is bound to conform to the changing penal practices of other nations. We can give no preference to prejudices inherited from the American past but must dispassionately observe and acquiesce in whatever is elsewhere regarded as “decent”.

What, then, is the most dynamic trend in contemporary criminal law? Is it not the remarkable progress of shari’a, which has greatly expanded its legal “market share” over the past two decades? Moreover, there are strong indications that, whether or not shari’a has yet reached the point where U.S. courts applying the Simmons doctrine will be compelled to recognize it as a benchmark for decency, that day will arrive within the next two or three decades. Europe’s Moslem population is growing rapidly, and European Moslems already, to the extent that they can, obey their preferred legal code de facto, if not de jure. In a not too distant eventually, if the current of history continues to flow in the same direction, the code of Napoleon will be a mere remnant beside the code of Mohammed.

It is not the least bit fantastic to foresee that by, say, 2025 some American state, swayed by its own Moslem population, will begin to import shari’a principles and punishments. It might, for instance, decree that thieves shall be punished with the loss of a hand. Will a convicted thief be able to invoke the Eighth Amendment to rescue his “dear hand, deft hand, clever and facile extremity” (to borrow words attributed to a much earlier target of Islamic justice)? Not if Simmons is a precedent. The prosecution will be able to demonstrate that punitive amputation is the wave of the future, adopted by an increasing number of jurisdictions throughout the world. Just as the laggard legislature of Missouri deserved to be brushed aside in 2005, so will the progressive lawmakers of our hypothetical 2025 state deserve to be upheld.

I hope that a long-lived Justice Kennedy will yet be sitting on the bench when cert is granted in that case. I look forward to reading his opinion.

Additional views: Power Line:

In my view, the reliance on foreign law and practice is a symptom of the Court’s problem, not the problem itself. The Court has appropriated from the American people the role of social arbiter. Thus, it strikes down longstanding policies and practices adopted through the democratic process on the grounds that five or more Justices personally don’t approve. This creates a question of legitimacy which causes the Justices to scrounge for support. Since the Justices preferences often don’t correspond to the preferences of majorities here, they naturally look to Europe. They lack the political savvy to realize that doing so only makes their work seem even less legitimate.

Or perhaps I’m completely wrong. Maybe the offending Justices don’t really care about whether the Court is perceived as legitimate, and just refer to international stuff because they are trained to cite things.

Power Line again:

When the Court looks to European standards on this issue, it is not looking to any meaningful societal consensus. The abolition of the death penalty in Europe generally occurred by fiat in the face of public opinion that favored the penalty, and (based on the polls I’ve seen) probably still does. . . .

[W]hen our robed masters find confirmation in Europe of their views about what is decent and what is “cruel and unusual,” they are relying on the views of a very narrow segment of European opinion – essentially the prejudices of the folks with whom they schmooze on their summer junkets to the continent.

Justice Scalia, dissenting:

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. See, e.g., Bellotti v. Baird, 443 U. S. 622, 643, 644 (1979) (opinion of Powell, J.); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 74.75 (1976). 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.

Orin Kerr, in The Volokh Conspiracy:

One interesting part of Roper is the incentives it creates (together with Atkins v. Virginia) for those seeking judicial abolition of the death penalty. Roper and Atkins tell capital defense litigators to delay their cases for as many years as possible. Drag out the appeals for a long, long time. During that period, have activists try to encourage legislators in a few select states to enact new legislative restrictions on the death penalty. It doesn’t matter if those restrictions have any actual effect on how cases are charged; bans in states that do not actually bring any death penalty cases are fine, as the real audience is the Supreme Court. Years down the road, you can then use the new legislative restrictions in a few states as “objective indicia of consensus” that the practice of using the death penalty in such cases is impermissible. In effect, the changing practice in a handful of states can be bootstrapped by the courts into a constitutional ban that applies to all states.

Stephen Bainbridge:

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?

Further reading: Laurence E. Rothenberg, “International Law, U.S. Sovereignty, and the Death Penalty” (Thanks to The Buck Stops Here)
Iowahawk, “Court Backs 3-Oxen Dowries”
Will Baude, “Low Opinion”

Comments

[Bruce Allardice]

To me the acme of absurdity in Justice Kennedy's Roper opinion is when he asserted a "national consensus" on the issue. Since 4 of the 9 justices dissented, Kennedy couldn't even get a "consensus" on the very court that asserted the supposed "consensus".