Though it is a relief that, for the moment, this barbaric exercise is stopped, we must realize that our languid democracy passed another milestone today on its decline into judicial tyranny with the Supreme Court’s pronouncement in Roper v. Simmons. The Court held, as expected, that executing minors is unconstitutional. According to the 5-4 majority, minors are “categorically less culpable than the average criminal,” and so executing them would violate the 8th Amendment prohibition against cruel and unusual punishment. That position is a rational and defensible position to take.
However, the reasoning the Court uses to get there is ominous. This decision, rife with philosophical inconsistencies and tainted by an unbecoming reference to foreign and international law, marks yet another exhibit in the imperial Court’s legislative will, and hints at the chaos that is washing over our judicial system.
First, the Court takes it upon itself to examine “the evolving standards of decency that mark the progress of a maturing society” in order to determine if execution of juveniles is cruel and unusual. This examination consists of a strange calculus of simply counting those states that permit juvenile execution and those that do not. This ignores the fact that every state allows for juveniles to be treated as adults in non-capital offenses, and that before today States had the liberty to revisit the issue. No matter. For the meat of their “consensus” argument, the Court goes to the academy, the least representative subdivision of the population. They cite numerous law review articles and academic studies in support of their assertion. The Court has no business interpreting at arm’s length the intents and underlying convictions of State legislatures. They are singularly unqualified to do this. The vaunted independence of the judiciary, which isolates them from the influences of the electorate, works both ways. As Justice Scalia points out in yet another scathing dissent, with this decision the Court “proclaims itself sole arbiter of our Nation’s moral standards.”
Further, the rigidity of the rule is fundamentally undemocratic. The line of 18 years is arbitrary, and simple common sense says that some 18 year olds are fully mature and others border on imbecility. The best forum for determining that is the trial court. Note that the opinion does not shy away from Roper’s actions. Indeed, he serves the Court’s purpose well in that if this demon is free from execution, any juvenile killer will be. Bear in mind that the petitioner here is not seeking to mandate juvenile execution nationwide, but only asserting that in jurisdictions where the people have approved it through their legislatures, juries should be free to weigh the brutality of the crime against the mitigating factor of possible immaturity, an individual examination that this Court has previously mandated. No more. This topic now joins the long list of questions, headed by abortion, that have now been removed from any debate in any State legislature in the land.
Finally, the tortured logic the Court embraces is dangerous. It is said to be irrefutable that minors have less conception of right and wrong, that they are more impetuous and that their characters have not been formed. This language is hauntingly familiar to the language of the greater victim culture at large. How long until a federal Court applies this logic to black males from the inner city? Because of society’s indifference to the inner city and its law of the jungle ethos, it may be soon argued, minorities have less of a conception of right and wrong. Because of society’s abandonment of minorities, an activist Court will say, their characters are not well formed. It is clear that the Court has framed capital punishment in order to set the stage for its eventual abolition by undemocratic means.