Jewish World Review March 4, 2005 / 23 Adar I, 5765
Supreme Court legislates a death blow to constitutional fundamentals
In striking down the death penalty for those under the age of 18, the U.S.
Supreme Court continued its transformation from a court into a super
legislature, if that process is not by now complete.
I say that as an opponent of the death penalty who believes it should be
I oppose the death penalty because I believe that the modern judicial
system is too imprecise, too fraught with potential error, to be entrusted
with an irreversible penalty. I believe that making life without parole the
maximum penalty is the more prudent, just course.
But that does not make the death penalty unconstitutional, in its entirety
or as applied to 16 and 17 year olds (the court had previously declared the
death penalty unconstitutional for those under the age of 16). It's a
decision for legislatures to make, not judges.
In preempting legislatures on the basis of the cruel and unusual punishment
clause of the 8th Amendment, the court did not look to what that
encompassed at the time the Bill of Rights was adopted, nor to the ordinary
meaning of the words as applied to today's world.
Instead, the court has determined that what constitutes cruel and unusual
punishment is to be based upon "the evolving standards of decency that mark
the progress of a maturing society."
The haughty tenor of the court's formulation is revealing. Those who
disagree with the court's judgment are, by inference, less decent, less
evolved, less progressive and less mature than the justices.
And, if a member of a real legislature, irrelevant.
As recently as 1989, the court had upheld the constitutionality of the
death penalty for 16 and 17 year olds. So, what changed?
Four states decided to limit the application of the death penalty to those
18 years old and older. According to the court, that means that there is
now a national consensus that applying the death sentence to those under 18
constitutes cruel and unusual punishment.
But 20 states still allow the death penalty to be considered for 16 and 17
year olds. That constitutes, not a consensus, but a country fairly narrowly
divided on the issue.
What if those four states changed their minds and again applied the death
penalty to those under 18? Would that mean that the death penalty for 16
and 17 year olds would suddenly become constitutional again?
But, of course, that cannot happen. The court would strike each of them
down sequentially as unconstitutional.
Former Soviet premier Leonid Brezhnev advanced an eponymous doctrine: The
capitalist world was up for grabs. But once a country went communist, it
could never go back.
The court has its own Brezhnev doctrine: Standards of decency can evolve
until we like them. Then they are locked into place and contrary movement
What really has changed is the mind of Justice Anthony Kennedy. He joined
in the 1989 decision upholding the constitutionality of the death penalty
applying to 16 and 17 year olds. He wrote Tuesday's decision declaring it
In addition to inventing a national consensus that clearly does not exist,
the court based its decision on the fact that 16 and 17 year olds are more
immature and irresponsible than adults, and thus less culpable for their
Having had a couple of children recently pass through those ages, I'll
stipulate to the description. But the sort of depraved murders for which
the death penalty is possible are hardly juvenile antics.
As Justice Sandra Day O'Connor painstakingly points out in dissent,
youthfulness is a mitigating factor juries must weigh in deciding whether
to apply a death sentence. Just because, as a cohort, 16 and 17 year olds
are less mature and responsible than adults doesn't mean that a particular
juvenile hasn't exhibited culpability for a particular depraved murder
sufficient to warrant the death penalty.
According to Kennedy's majority opinion, juries cannot be trusted to make
such judgments because they might be overpowered by the "brutality or
cold-blooded nature of any particular crime." Why the nature of the crime
wouldn't likewise overpower the other decisions about aggravating and
mitigating factors juries have to make in the death penalty math previous
court decisions have imposed, Kennedy doesn't bother to explain.
It's really quite simple. A majority of the court believes that the death
penalty should not apply to those under the age of 18. And they, acting as
a super legislature, have made it so.
Unfortunately, people react to Supreme Court decisions based primarily on
whether they like the result, not on the basis of the reasoning, its
appropriateness or its implications.
So, predictably, death penalty opponents will cheer this decision; death
penalty supporters will condemn it.
But, in reality, something more important than even the weighty issue of
whether those under the age of 18 are subject to the death penalty is at
If the Constitution has no enduring meaning, then it has no enduring
protections for the liberties it is intended to secure.
02/24/05: Europe is no pillar of U.S. security
02/27/04: How not to achieve a mandate