The Supreme Court press gallery is positioned directly across from the massive Adolph Weinman frieze on the south wall of the ceremonial courtroom—the one with Moses, packed in amidst "great lawgivers of history," Ten Commandments in hand. Following yesterday's decision by the court to hear a pair of Ten Commandments cases, reporters around me are speculating about what will happen to the poor Decalogue. Someone suggests the Supremes should just ditch the first four commandments as a matter of federal constitutional law. (Weinman's already done this by coyly draping Moses' beard and robe anywhere on the tablets "God" might appear.) Someone opines that Mohammed and the Quran probably need to come down as well. I'm hoping one of the justices will knit a teeny little commandment-cozy, to slip over the statue.
Today's oral argument in Roper v. Simmons asks whether the execution of people who were 16 or 17 years old when they committed their crimes constitutes "cruel and unusual punishment" under the Eighth Amendment. Obviously the Founders didn't think executions of adolescents were cruel and unusual, so we know where Scalia's vote will go. But Scalia is cruelly pinned beneath the ruling in Trop v. Dulles—a 1958 case holding that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Unlike much of the court's jurisprudence, this analysis does not require poring over texts or channeling Thomas Jefferson. Instead, the court is asked to blink directly into the bright light of science and current events to determine whether "evolving standards of decency" mandate a change in the notion of what is cruel and unusual. Among the justices who believe the human race is evolving in what is decidedly the wrong direction, this is pure hell. Even contemplating the New Age notion that a "teenage brain" exists must be cruel and unusual punishment for Clarence Thomas. But this is the test. So, away they go.
Christopher Simmons was 17 when, in 1993, he robbed and abducted Shirley Crook. He tied and gagged her with electrical wire and duct tape and threw her off a railroad bridge from which she plummeted and drowned. Simmons evidently bragged to friends that he'd get away with this since he was a minor. The jury disagreed, convicting him of first-degree murder and sentencing him to death.
The last time the Supreme Court heard a case about the constitutionality of executing 16- and 17-year-olds was in 1989—when it decided Stanford v. Kentucky. A plurality of the court determined then that there was no social or historical consensus that the death penalty was cruel and unusual for teens of those ages, even though in 1988 the court had determined that such a consensus existed for offenders under 15. In 2002 the court voted 6-3 to ban the execution of the mentally retarded in Atkins v. Virginia, using the "evolving standards" test to find that most states no longer believed it acceptable to execute them and that the mentally retarded had diminished culpability for their crimes.
The Atkins decision somehow emboldened the Missouri Supreme Court—that was deciding Simmons' case—to just overrule the Supremes' original Stanford decision completely. Leaning on the reasoning in Atkins, the Missouri court decided that a new consensus walks among us and that the Supreme Court had missed the boat. Nine out of 10 dentists agree: It's bad to kill teenagers.
James Layton, the state solicitor of Missouri, is here this morning to remind the high court that it's been dissed. He argues that the proper age to be executed should be left in the hands of legislatures and that the issue of an individual's culpability and maturity are best left to a jury. "Some 17-year-olds are culpable," he says, "and some are not."
Justice Ruth Bader Ginsburg suggests that society treats those under 18 as not-adult in dozens of ways—they are unable to vote, serve on juries or in the military, or buy tobacco. "Why would you be death-eligible at 18 but not eligible to be a member of the community?"
Justice Antonin Scalia heads the other way: "Why stop at the death penalty?" he asks. "Why not say anyone under 18 is immune from all punishment?" (He doesn't really mean this. This is just his way.)
Everyone's eyes are on Sandra Day O'Connor again today. Hers was the swing vote in Thompson v. Oklahoma—the case banning executions for 15-year-olds. Her concurrence was also the key to Stanford v. Kentucky—the case allowing executions for 16-year-olds. We know four justices already oppose killing minors because in 2002, John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer all dissented when the Supremes refused to hear a case on this issue. They did not mince words: "The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice."
So, they need one more vote. But O'Connor says virtually nothing today. She asks a single question of Layton: "Isn't there about the same consensus that existed in Atkins [the case about the mentally retarded]? Aren't we obliged to look at that?" That's all she says, folks. Read your tea leaves here.
Justice Anthony Kennedy, the other swing vote in Atkins, asks whether the fact of adolescence can ever be used to increase penalties. Layton says it's only used as a mitigating factor. So, Ginsburg reads at length from the transcript of Simmons' sentencing, in which the prosecutor threatened the jurors with: "Think about it. He's only 17 years old. Isn't that scary? Mitigating? Quite the contrary!" Ginsburg suggests his youth was used to demonize Simmons.
Kennedy then turns to the real nut of the problem: "Let's focus on the word 'unusual.' Forget 'cruel.' There is substantial demonstration that the world is against us, at least among the leaders of the European Union. Does that have a bearing on whether this is unusual?"
The "substantial demonstration" to which he refers includes amicus briefs from 48 foreign countries, assorted Nobel Peace Prize winners, and some high-octane religious, medical, and human rights groups, all reminding the court that no other civilized country permits juvenile executions and that our policy violates the U.N. Convention on the Rights of the Child. A convention only the United States refuses to ratify.
Layton says decisions on the meaning of the Eighth Amendment should not be based on foreign opinion.
Breyer asks, "Do you have any indication of whether Madison or Jefferson would have thought it was totally irrelevant what happened elsewhere in the world?" Layton says Jefferson believed the United States was leading the world but doing so through legislation, not the courts.
Scalia adds, "And what did John Adams think of the French?" Layton replies that he didn't think very highly of them. A reminder that blaming all of life's ills on the French predates Fox News.
Breyer notes that if you look at the past 10 years, only three states have executed juveniles. Texas killed 11, Virginia killed three, and Oklahoma killed two. If even the states that allow it don't do it, isn't that a consensus?
Seth Waxman represents Christopher Simmons, and he starts the morning looking like a guy who only needs one vote. When he says that since Stanford a consensus has emerged, it becomes clear that Scalia won't be that one vote: "Does the constitutional calculus ever move in the other direction?" Scalia asks, meaning, is there ever a consensus toward killing more rather than fewer people?
Waxman soon makes an odd word choice, saying the "world consensus" represents "the better view in Europe." Chief Justice William H. Rehnquist, previewing the part of George W. Bush tonight, shoots back, "What suggests it's a 'better view in Europe'?"
Waxman points out that the vast scientific evidence amassed in this case to suggest that teenage brains are still undeveloped didn't exist in 1989 when the court decided Stanford. So, the chief justice asks whether all this psychological evidence was introduced at trial. "I would think if you want us to rely on it, it should be introduced at trial. Not just in an amicus brief."
Waxman is a bit stuck. For one thing, some of this research came about after Simmons' 1997 trial. For another, as he points out, the question of whether executing juveniles is constitutional wasn't an issue at trial. It was state law and what the jury was told to work with. The chief justice is unimpressed. And Kennedy, who seems to be searching for a reason to vote for killing teens, agrees all this psychological evidence should have been introduced at trial. Waxman tries to say these are legislative, constitutional facts, having nothing to do with Simmons' murder charges. So, Kennedy flat-out tells him, "Suppose I am not persuaded by this argument. Do you lose the case?"
These are never felicitous words to a man looking for just one vote.
Waxman says teenagers are like the mentally retarded in that they cannot properly communicate with counsel or express remorse and because their characters will change so much. On trial, years later, jurors see a different person.
Scalia says: "I thought we punish people for what they were, not are. To say after the crime that he's come to Jesus … we don't let them off. You're never the same person that committed the crime."
Kennedy finally hits on his reason to vote against the punk kids: "A number of juveniles run in gangs," he says. "Some gang members are over 18. If we rule in your favor, wouldn't that make 16-, 17-year-olds subject to being hit men in gangs? I'm very worried about that."
Kinder to execute them instead. …
Kennedy cites the "chilling" amicus brief filed by the state of Alabama. "I wish all the other amicus that had signed on had read it," he frets. Stupid Dalai Lama. The Alabama brief is hideous indeed—a detailed catalog of the junior Jeffrey Dahmers who have terrorized the state of Alabama. The truism—that kids who kill folks are really, really terrible—is not lost on Kennedy.
Layton's rebuttal is impressive. Suddenly he can see himself pulling this case out. He uses Lee Boyd Malvo—spared the death penalty by a Virginia jury—as an example of how the current system works. Jurors can tell whether someone is immature or culpable.
Dissenting in Atkins, Justice Antonin Scalia once raged: "But the Prize for the Court's Most Feeble Effort to fabricate 'national consensus' must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called 'world community' … the views of professional and religious organizations and the results of opinion polls are irrelevant. Equally irrelevant are the practices of the 'world community,' whose notions of justice are (thankfully) not always those of our people."
This is an argument George Bush makes five times every debate. (Watch for it again tonight.) While we might agree that world opinion, international law, and scientific truth can't single-handedly dictate American law or policy, the new patriotism holds that they cannot even illuminate it.