In a comment on Ed Brayton’s blog, Xrlq writes, “When the majority [of the Supreme Court] struck down a flag-burning law, they did so because the clearly expressed will of the Texas legislature conflicted with the...will of the American people as expressed in the Constitution. If a statute and the Constitution conflict, then of course the Constitution wins. [Roper v. Simmons] was nothing like that.”
Well put. The concept of judicial review is based on the idea that the Constitution expresses the true will of the people, while the decisions of any particular legislature represent only the shifting, changeable will of that particular legislature. The will of the legislature may not trump the will of the people, as expressed in the Constitution, and therefore laws which violate the Constitution are void—and the judges are the people who decide whether the a law does go that far.
In this case, the Court cannot be said to have done that. What they’ve done is—by their own admission—“determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.” The Court’s “review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question” is really a sham, and not a very good one at that. First of all, the consensus that matters in judicial review is Constitutional consensus—consensus so generalized that it has reached the level of a Constitutional enactment. That’s a pretty overwhelming consensus.
Secondly, the “consensus” the Court finds is a badly cobbled together one that, as I’ve noted already, is not exactly a real majority of the people. The Court notes how many states have banned the death penalty for people who kill when they’re 17, but it includes in the count Washington, where the ban arose from a judicial opinion. And then the Court says that in past cases, when deciding what a consensus is, it’s relied on the rapidity with which states were changing their laws—in the case that banned the death penalty for the mentally retarded, the Court said states were banning this practice very quickly—but the Court has to acknowledge that “the rate of change in reducing the incidence of the juvenile death penalty, or in taking specific steps to abolish it, has been slower. Five States that allowed the juvenile death penalty [fifteen years ago]…have abandoned it…four through legislative enactments and one through judicial decision.” That slow rate ought to indicate that there is no Constitutional consensus here, and that there are many people like myself, who believe that a person who murders the day before his eighteenth birthday deserves to die. But instead, the Court says “Though less dramatic than the change [involving retarded murderers]…we still consider the change [involving teenage murderers] to be significant”!
I am reminded of the following passage from Alice in Wonderland:
“What do you know about this business?” the King said to Alice.
“Nothing,” said Alice.
“Nothing whatever?” persisted the King.
“Nothing whatever,” said Alice.
“That’s very important,” the King said, turning to the jury. They were just beginning to write this down on their slates, when the White Rabbit interrupted: “Unimportant, your Majesty means, of course,” he said in a very respectful tone, but frowning and making faces at him as he spoke.
“Unimportant, of course, I meant,” the King hastily said, and went on to himself in an undertone, “important — unimportant — unimportant — important —“ as if he were trying which word sounded best.Some of the jury wrote it down “important,” and some “unimportant.” Alice could see this, as she was near enough to look over their slates; “but it doesn’t matter a bit,” she thought to herself.
Then the Court ignores the ratchet effect: “[In the past fifteen years], no State that previously prohibited capital punishment for juveniles has reinstated it.” But of course it is always harder to pass a law than not, because there are a practically infinite number of objections to any law. The failure to enact a proposal is not proof that the authority considers it a bad idea, because there are many other explanations for the failure of a proposal.
But to gloss over the fact that the states are not doing what the Court says they are doing, the Court says “Any difference between this case and Atkins [the case banning the death penalty for mentally retarded killers] with respect to the pace of abolition [of the death penalty] is thus counterbalanced by the consistent direction of the change.” The direction of the change! By this logic, a consensus can be made out of a single state’s act! You know, there is a national consensus in favor of Arnold Schwarzenegger being the President of the United States. Sure, nobody’s voted for him, but he used to be an actor and now he’s Governor. So although nobody has voted for him to be President, that fact is counterbalanced by the consistent direction of the change.
The Court then says “The slower pace of abolition of the juvenile death penalty over the past 15 years, moreover, may have a simple explanation.” Well, yes: the explanation is that there are many people who believe that there is nothing unconstitutional or wrong about executing people who murder when they are 17 and a half years old. Instead, though, the Court says that “this shows that the impropriety of executing juveniles between 16 and 18 years of age gained wide recognition earlier than the impropriety of executing the mentally retarded.” Maybe. Or maybe not. One of the worst things you can do in republican government is to say that a policy ought to be enacted despite the fact that the people haven’t approved of it, because their failure to approve it is attributable to some cause other than that they don’t believe in it. I could say “Well, people believe that all property should be nationalized, but they haven’t voted for that because they’re misled by their capitalist oppressors,” or “People want to ban all religion, but they haven’t voted for it because they’re under the sway of the church.” That may indeed be the case—but it also may not be the case, and this sort of rationalization is far too easily transformed into a justification for substituting will for judgment.
Substituting will for judgment is what Alexander Hamilton said the Court should never do—and what the Court admits that it is doing when it “determine[s], in the exercise of [its] own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.” Roper violates the principles on which judicial review is based; it uses the flimsiest logic in constructing a façade of a national consensus; it plays into the hands of those conservatives who would abolish legitimate judicial review; it is an embarrassment.
Update: Thanks to Jurispundit for the link.
