(For Dahlia Lithwick's take on the case, click here.)
Dissenting from Tuesday's U.S. Supreme Court ruling on the execution of juveniles, Justice Antonin Scalia ridicules his colleagues for switching sides on the basis of "evolving standards." He calls the majority opinion a "mockery" for supposing that the Constitution's meaning "has changed over the past 15 years." It's an unfortunate complaint, because the justice most flagrantly guilty of changing his position on the moral responsibility of juveniles in the last 15 years is Antonin Scalia.
In the current case, Roper v. Simmons, Scalia goes after his favorite target, Justice Sandra Day O'Connor. Never mind that she's on his side. "She is nonetheless prepared (like the majority) to override the judgment of America's legislatures if it contradicts her own assessment of moral proportionality," he writes in a footnote. "The votes in today's case demonstrate that the offending of selected lawyers' moral sentiments is not a predictable basis for law."
Next, Scalia targets the author of Tuesday's majority opinion, Justice Anthony Kennedy. Scalia accuses the majority of "picking and choosing" studies to support its "unsubstantiated generalization" that juveniles are too immature to be held fully accountable for murder. "At most, these studies conclude that, on average, or in most cases, persons under 18 are unable to take moral responsibility for their actions," Scalia writes. "Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes." Therefore, he concludes, they don't support Kennedy's "categorical prohibition of the death penalty for murderers under 18."
Abortion figures heavily in Scalia's critique. He tweaks liberals who think minors are mature enough to make abortion decisions but not mature enough to deserve execution.
As petitioner points out, the American Psychological Association (APA), which claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court. In its brief in Hodgson v. Minnesota, 497 U. S. 417 (1990), the APA found a "rich body of research" showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement. ... The APA brief, citing psychology treatises and studies too numerous to list here, asserted: "[B]y middle adolescence (age 14-15) young people develop abilities similar to adults in reasoning about moral dilemmas, understanding social rules and laws, [and] reasoning about interpersonal relationships and interpersonal problems."
Scalia then skewers his colleagues for the same flip-flop:
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.
It's a clever point. But let's go back to the 15-year-old abortion case Scalia cited. In Hodgson, the court upheld a Minnesota law that required notification of both parents before performing an abortion on a girl less than 18 years old. However, the court also required Minnesota to offer girls the option of explaining to a judge why they should be allowed to make the decision on their own. O'Connor insisted on the judicial bypass as a means of "tailoring" parental involvement laws "to avoid unduly burdening the minor's limited right to obtain an abortion." She cited a 1976 case in which the court struck down a parental involvement law that didn't allow the option of "judicial determination that the minor is mature enough to give an informed consent without parental concurrence."
O'Connor's position, in other words, was that age was too rigid a criterion. And what's her position in the death-penalty context? The same. She opposes a "categorical prohibition" of death sentences for minors, since the evidence merely shows "differences in the aggregate between juveniles and adults, which frequently do not hold true when comparing individuals. Although it may be that many 17-year-old murderers lack sufficient maturity to deserve the death penalty, some juvenile murderers may be quite mature. Chronological age is not an unfailing measure of psychological development."