When I first heard about this, I didn't necessarily disagree with it. Although I do think there are juvenile offenders whose crimes are heinous enough to merit the ultimate sanction (I tend to think of it not so much as punishment as excising an unacceptable risk from society), it is better to err on the side of caution given the finality of the sentence once carried out.
However, at that time I had not read any information about the actual ruling itself and the majority Justices' reasonings for that ruling. Although I may not disagree with the outcome, the reasoning used is something that we all should be very concerned about.
Others have done a much better job than I of expressing this. I point you to Kim du Toit's post on the subject. Lileks chimes in as part of a longer post. The relevant portion I include here:
For a modern analogue, albeit a broad and inexact one, you could be worried about the SCOTUS decision on the death penalty. It upended laws concerning the execution of juvies because five judges didn’t much like the law, and were alarmed to find it was out of step with the direction of the drift of the emanations of the penumbra of several judicial decisions in Europe. I’m not all that keen on the death penalty; I think it lets them off the hook. I want killers to die in jail, alone, forgotten, with their last meal consisting of steak-flavored mush and Sanka. But the reasonings don’t seem based in that pesky Constitution itself, and the very idea of using foreign law as some sort of guide for American law unnerves me as much as it angers me. I know: let’s use Iranian law to settle the constitutionality of divorce, right now. Someone bring a case.
There are others. Just click browse the blogs on my blogroll and I'm sure you'll find plenty.
In short, there is an increasing and disturbing trend for the Supreme Court to use foreign opinion to shape their decisions. Section IV of the majority opinion is devoted entirely to doing this. That section includes this text:
It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10—11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.
Yes, they say it is not controlling their outcome, but I disagree that it is proper that they acknowledge such foreign opinion. It should have no bearing whatsoever on the court's decision, as Scalia notes:
The Court thus proclaims 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. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.
The Federalist had this to say as part of a larger essay regarding Senate Democrats' obstructionism regarding the President's judicial nominees:
The U.S. Constitution suffered some serious setbacks this week. The future of liberty and the rule of law suffered likewise.
It's bad enough that Democrat obstructionists are once again denying President George Bush's federal-bench nominees their constitutionally prescribed up-or-down vote by the full Senate. In a fine example of why we need those nominees on the bench, Leftists on the Supreme Court are, again, "interpreting" the so-called "living Constitution" as a method of altering that venerable document by judicial diktat.
Worse yet, these Left-judiciary Supremacists -- Justice Anthony Kennedy and Court Jesters Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens -- cited "national consensus" as a factor in Tuesday's Roper v. Simmons ruling. In other words, they disregarded the Constitution's prescription for federalism and republican government in the name of unmitigated democracy. Which is to say, while riding roughshod over the Ninth and Tenth Amendments as they overturned the laws of 19 states, the Supremes blithely pushed the nation one step closer toward what everyone since Plato has described as governance in its most degenerative form.
Writing for the majority, Kennedy claimed that Americans had reached a "national consensus" against capital punishment for "children," citing as evidence that only 20 states allow a 17-year-old to be sentenced to death. Of course, Kennedy's logic is utterly at odds with decisions such as Roe v. Wade. In that 1973 decision, the Supremes serendipitously discovered a right to privacy that allowed for the aborting of children, despite the fact that all 50 states had laws at the time either prohibiting or tightly regulating abortion. So we must ask you, Justice Kennedy -- what's all this rubbish about a "national consensus?"
You recall, of course, that in a recent case, the Supremacists discovered a clause in the Constitution specifically stating that a 14-year-old is mature enough to abort the life of her child without parental consent. Now, in Roper v. Simmons, they've found a contradictory clause, which avers that a 17-year-old is not mature enough to be held accountable for capital murder.
Adding grievous insult to this "national consensus" injury, Kennedy cited "international consensus" noting "the overwhelming weight of international opinion" as a factor in the Court's decision. Kennedy cited the UN Convention on the Rights of the Child when writing, "The United States is the only country in the world that continues to give official sanction to the juvenile death penalty." Here, his message was all too clear: The High Court is building a tradition of referring "to the laws of other countries and to international authorities as instructive for its interpretation" of the U.S. Constitution.
Sadly, such citing of international standards and conventions seems to be the latest fashion among the Supremacists.
In 2003, Justices Ginsburg and Breyer upheld an affirmative-action policy at the University of Michigan, noting an international treaty endorsing race-based advancement for minorities. Stevens, for his part, cited international law in overturning another capital case: "Within the world community, the...death penalty...is overwhelmingly disapproved." Furthermore, in Lawrence v. Texas, Kennedy wrote that the European Court of Human Rights has affirmed the "rights of homosexual adults to engage in intimate, consensual conduct."
Justice Sandra Day O'Connor said recently, "I suspect that over time we will rely increasingly...on international and foreign courts in examining domestic issues." Justice Breyer added, "We see all the time, Justice O'Connor and I, and the others, how the world really -- it's trite but it's true -- is growing together. The challenge [will be] whether our Constitution...fits into the governing documents of other nations."
"How our Constitution fits?"
Justice Antonin Scalia, a dependable constitutional constructionist, protested on behalf of the dissenters that capital punishment should, rightly in accordance with constitutional federalism, be determined by individual states. "Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent. ... To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry." Just so.
Perhaps Justice Scalia recalls this admonition from Founder George Washington: "Against the insidious wiles of foreign influence...the jealousy of a free people ought to be constantly awake; since history and experience prove that foreign influence is one of the most baneful foes of Republican Government."
Clearly, international consensus has no standing whatsoever in the constitutional rule of law in the United States. For that matter, the only relevant "national consensus" is that prescribed by our Constitution for its amendment -- a consensus of the people as represented by two-thirds of the legislatures of the several states. But such facts are lost on Left-judicial activists who are content to legislate from the bench. Just consider this recent comment from Justice Breyer: "The extent to which the Constitution is flexible is a function of what provisions you're talking about." In other words, if he likes it the way it was written, it stands as is. If not, he interprets it, in the words of the august Sen. Sam Ervin, "to mean what it would have said if he, instead of the Founding Fathers, had written it."
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