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March 02, 2005
SCOTUS: New Arbiters of National and International Consensus?
I am not particularly fond of the death penalty (I've had a very loose draft of a post on the subject sitting idle for too long now), but the philosophical basis for yesterday's Supreme Court ruling overturning various State laws allowing the execution of minors is troubling. The Court cites a "national consensus" against the death penalty for minors and, via references to foreign decisions and law, suggests their decision conformed also to a global consensus.
Let's look at a timeline:
1989 Stanford v. Kentucky: Court upheld State laws allowing death penalty for minors.
1997 State v. Simmons: Missouri Court ruled that Simmons' death sentence was constitutional. A 2001 appeal was denied (Simmons v. Bowersox, 235 F. 3d 1124, 1127 (CA8), cert. denied, 534 U. S. 924 [2001].).
2002 Atkins v. Virginia: Justice Stevens' opinion cited a "national consensus has developed" against the death penalty for mentally retarded.
2002: Simmons files a new petition on the basis of Atkins v. Virginia. The petition argues that the conditions of his 1997 Missouri Supreme Court and 2001 appeal have changed.
2003 State ex. rel. Simmons v. Roper: Missouri Supreme Court overturns their earlier ruling, saying that, whereas in Atkins v. Virginia, a national consensus had developed against the death penalty for the retarded, a national consensus had also developed against the death penalty for minors.
2004 Simmons v. Roper: The Supreme Court decision, written by Justice Stevens Kennedy, author of the Atkins decision, cites the "national consensus" as a valid reason for striking down the death penalty for minors.
With this ruling, the Supreme Court of the United States (SCOTUS) has assumed the role of arbiter of national consensus. Simmons v. Roper also facilitates arbitration of international consensus by the Court.
I link to an article on the subject from the Economist, a highly respected British periodical, because it exemplifies well my objection to the Simmons v. Roper decision.
The article outlines three trends that may signal an end to the death penalty in America: 1) public opinion; 2) judicial and executive activism; and 3) appeals to foreign opinion and law (I admit is not easily distinguishable from point #2.)
On point #3:
A third trend against the death penalty in America is the increasing attention paid to moral views elsewhere. In the Supreme Court’s majority opinion, written by Justice Anthony Kennedy, the court acknowledged “the overwhelming weight of international opinion against the juvenile death penalty”. While the court explicitly said that foreign opinions, legal or moral, are not binding in American law, they were nonetheless “respected and significant confirmation” for Tuesday’s ruling.As demonstrated by the "national consensus" timeline, in this instance there is merit to the tired slippery slope argument. One day the Court references a foreign judicial opinion or law as ancilliary support for an opinion. The next day, the Court relies on this previous opinion and its references to foreign law in the supporting rationale for an otherwise tenuous opinion. Opinions build upon opinions and the line between American case law and foreign case law becomes blurred.
The Economist ended their article with the following quote, which touches on the problem with Stevens' national consensus proclamation:
America may be happy to differ sharply from the world’s other democracies on some moral and ethical issues, and this often irritates its closest friends. But this week’s death-penalty ruling seems to show that even a superpower can sometimes be swayed, even if just a bit.Has America been swayed? Or have 5 of 9 life tenured unelected Robed Ones been swayed?
NROs Jonathon Adler echoes my concerns:
I have substantial qualms about the death penalty, but I cannot see how today's decision is "good" in any sense of the word. As a legal opinion, it's outrageous. It replaces representative government and the rule of law with the moral sense of five folks in robes.I realize that the consensus of a polity can be stifled in our most directly representative institutions, but the SCOTUS is hardly the appropriate body for determining national consensus. Worse for democracy, though, would be a SCOTUS that forces Americans to submit to international consensus.
Posted by Rick at March 2, 2005 09:34 AM
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Listed below are links to weblogs that reference SCOTUS: New Arbiters of National and International Consensus?:
» History of the Death Penalty for Minors from Right Mind
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Tracked on March 3, 2005 10:37 AM
» So. What're we gonna do about it? from Vote for Judges
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Tracked on March 4, 2005 01:40 PM
Comments
We already have a process for determining consensus in this country as regards laws--and it doesn't involve judges. It involves elections, and the actions thereafter taken by elected representatives.
The Supreme Court has become a cabal of witchdoctors divining truth by throwing the bones and "reading" the results.
Posted by: Sue Bob at March 2, 2005 04:33 PM
Rick,
Thanks for pointing out that correction on my blog.
Danke.
Best,
Dale
Posted by: Dale Courtney at March 3, 2005 11:20 AM