The Supreme Court handed down its opinion in Roper v. Simmons this morning; a decision invalidating the executions of juveniles who were 16 and 17 years old at the time of their crimes. Fighting over the "evolving standards of decency" underlying the Eighth Amendment's ban on "cruel and unusual punishment," the 5-to-4 opinions reflect an all-out war between the proponents of a living (or at least medium-rare) Constitution and those who want to see it dead (or perhaps well-done, with a nice pinot). At one level, what's happening between the lines of Justice Kennedy's majority opinion and Justice Scalia's scorcher of a dissent, is a debate about how to count whether a national consensus or trend exists. But the more profound fight is over whether and how judges have a right to exercise their independent judgment at all.
Everyone in this case is essentially agreed that the Eighth Amendment standard for what constitutes cruel and unusual punishment is, after a case called Trop v. Dulles, not fixed in time but must reflect evolving standards of what is decent or cruel or excessive. But Justice Kennedy's opinion today is dramatic in that he goes much further than necessary, to leapfrog over Stanford v. Kentucky, the 1989 case—authored by Scalia—finding that executing those who were 16 or 17 at the time of their crimes was constitutional. Kennedy relies not simply on the counting of noses—specifically, how many states ban juvenile executions and has there been a marked trend toward such bans across the national landscape. He goes much further, citing to social science data, common sense, and international trends and treaties, and ends up not simply distinguishing Roper from Stanford,but pitching that whole case like yesterday's meatloaf.
The problem begins with Stanford itself and Scalia's need to concede that the Eighth Amendment's definition of cruel and unusual must evolve past the standards of the Framers. That concession itself meant that some entity must pass judgment on what current standards are. Scalia was quick to hedge, emphasizing that "Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent." But he leaves no doubt that courts must engage in this objective enterprise: The courts must evaluate that data and discern what the trends may be. Scalia was careful to warn the courts that to substitute the justices' own preferences for such empiricism would be to "replace judges of the law with a committee of philosopher-kings." But beyond engaging in some nose-counting that made sense to him and his colleagues in the majority, Scalia did little to dispel the notion that once you're in the nose-counting business, someone needs to hold the abacus.
That's more or less what Justice Kennedy does in Roper. He holds up the abacus and, with a little gratuitous ringing of bells and blowing of whistles, he counts up to a trend. Citing to Scalia's accounting in Stanford—where he found that, of the 37 states that permitted the death penalty at all, 22 allowed it for 16-year-olds and 25 allowed it for 17-year-olds—Kennedy simply observes that 15 years later five of those states that allowed for juvenile executions then now prohibit it—four through the act of legislatures, one through judicial decree—and that no state has gone in the other direction. Kennedy takes great pains to show that these five states suffice as evidence of a national trend, and in doing so he launches Scalia over the moon.
Then Kennedy goes further, citing to the social science data, offered largely in amicus briefs, which suggested something that anyone with an 18-year-old baby sitter already knows: Teens are weird. Kennedy then shows that the penological aims of retribution or deterrence are not served by killing those under 18, and he body slams Scalia with the claim that he's not just overruling Stanford, but rejecting its basic premise that it's not the place of the courts to bring their independent judgment to bear on proportionality analysis in death-penalty cases. As if all that weren't enough to send Scalia out on a shooting spree, Kennedy tacks on a final section in which he extols the persuasive (but not legally controlling) power of international opinion on this matter. Waxing rhapsodic over the beauties of India, Canada, and England, as well as on the Pact of San Jose, Kennedy confirms not only his contempt for Scalia's oft-stated opinion that international law is utterly irrelevant to this court, but also his growing status as the high court's Mr. International Guy—world traveler, diner with diplomats, and suave European wannabe.
Is it any wonder that Scalia read his dissent from the bench this morning? Kennedy's decision was the judicial equivalent of plucking out his chest hairs, one by one. Scalia opens his 24-page dissent (joined by Rehnquist and Thomas but not by O'Connor) with the claim that Kennedy's opinion makes a "mockery" of Alexander Hamilton's assurance that the judiciary has neither "FORCE nor WILL but merely judgment." Then he assails the majority for "proclaiming 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."
Scalia goes to town on Kennedy's math, arguing that five new states do not a consensus make: "Words have no meaning if the views of less than 50% of death penalty states can constitute a national consensus." But whereas Scalia is looking for empirical evidence of "overwhelming opposition over a long period of time," he is never completely clear on how that's measured. He makes the same counterintuitive point he made in Atkins—the case overruling the death penalty for the mentally retarded: He says states outlawing capital punishment altogether shouldn't be counted as opposing capital punishment for minors. He even trots out this only semi-offensive analogy: "Consulting states that bar the death penalty concerning the necessity of making an exception for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car."
Scalia goes to great lengths to try to distinguish the court as diviners of a national consensus from the alleged Kennedy view of the court as "prescribers" of a national consensus. He tells us he doesn't like the way Kennedy counts, without acknowledging that someone, somewhere has to do this counting. What he's really saying—and there is some validity to this complaint—is that what Kennedy calls "counting" hides some fairly sketchy math behind gauzy social science and international opinion.
In a piece of vintage Scalia-ism he suggests that "our Eighth Amendment decisions constitute something more than a show of hands on the current Justices' current personal views about penology." And he rails some more at the majority and O'Connor for believing that there could ever be a consensus against killing teens. Scalia's probably right that Kennedy's ability to count as high as five should not authorize the judiciary to irrevocably set national law. But he can't quite bring himself to admit that he's just mad that the court has again refused to use his math.