Lily on Roper, response 1

Lily on Roper, part I

On line drawing according to age:
As Justice O'Connor has pointed out in her dissent in Roper, we can probably all agree that there is almost no morally significant difference between someone who is 17 years and 364 days old, and 18 years and 1 day old. But, on the other hand, we can probably agree that there (almost) always IS a difference, for purposes of X (X = death penalty, drinking, the draft, voting, driving, etc.), between someone who is 5 years old and someone who is 35 years old. And, we know that we need an easy-to-understand rule. "18" or "16" is the best measurement approximation that we, as a society, can come up with, to reflect the standard we REALLY would like to impose, which is actually something more abstract, like, "able to appreciate the responsibility of driving" or "capable of forming the depravity requisite for the imposition of the death penalty."

The challenges of fixing exactly what age cut-off society thinks is an acceptable surrogate for the standard that we REALLY mean, is what I think Roper v. Simmons is really about. The justices can't agree on how best to measure society's thoughts on that subject.

On the role of the judiciary:
The justices also cannot agree, as Andrew has pointed out, how to figure in their own subjective moral perspectives in the calculus of determining what "society" thinks. It's an intriguing thought that, not only are the justices allowed to inject their subjective viewpoints, but in fact it might be required of them. It puts me in mind of that endlessly parsed, overly quoted, but nonetheless dearly beloved Supreme Court opinion called Marbury v. Madison, 5 U.S. 137 (1803), which states in part:

"Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him?" Id. at 180.

This passage would seem to suggest that a judge is obligated by his oath of office to bring something of himself to the table. Researching the vast case precedent, seeing patterns in his predecessors' legal reasoning, and compiling the fruits of his efforts into a coherent published opinion, usually is a monumental undertaking in its own right. But to this endeavor the judge must yet add something more: he must give society the benefit of his years of experience, and the wisdom he has accumulated by shepherding case after case through the litigation process. Perhaps most importantly of all, he owes it to society to allow his own inner moral compass to guide him to the right answer.

If this perspective on the role of the judiciary is true (and it may not be - the slope down which too many "activist" judges have slid is a steep one!) then maybe the more intellectually honest discussion from the Court would be whether the death penalty for juveniles is ethical, as such. Rather than arguing about how we decide what other people think about it, how about asking the much harder question: what do WE think about it?

But is it is fair to expect the Justices to engage each other, and the nation, in that discussion? Is philosophizing about ethical dilemmas really what the American taxpayer hires them to do? It is much easier to debate the objective moral status of the juvenile death penalty from the comfort of a warm, book-lined library in the religion department, or on a friendly web log, than to do so while simultaneously wielding the power of life and death over hundreds of incarcerated teenagers across the nation. Perhaps it was entirely correct for the justices to search for a different, more quantifiable way to frame this debate. What do we think?