Roper, I

Owens on Roper

Last Tuesday, the Supreme Court handed down its decision of Roper v. Simmons. Justice Kennedy, writing for the Court, revisits the 1989 case, Stanford v. Kentucky, where the court held that executions of those under 18 when the crime was committed did not violate the 8th amendment. Now, 16 years later, a majority of 5 Justices finds that, indeed, the state killing those under 18 when committing the crime is an infliction of cruel and unusual punishment. The Court reverses Stanford via one principle: Constitutional interpretation under the 8th amendment evolves.

When Justices decide whether a law causes "cruel and unusual punishments [to be] inflicted," the Court refers "to 'the evolving standards of decency that mark the progress of a maturing society' to determine which punishments are so disproportionate as to be cruel and unusual." Citing the several States that bar executions of those under 18 as well as the international consensus on the issue, Kennedy finds that such state killings are now outside the scope of socially accepted punitive action.

This case, then, centers on a powerful debate about Constitutional interpretation, and a good many legal commentators have already jumped on this opinion--the blurred consensus, that I've managed to read, seems to celebrate the ruling if not the reasoning; Kennedy's attempts to expose a profound national consensus against under-18 executions fails to convince. The opinion reveals, many say, 5 Justices hoping to insert their own moral judgments on the entire country. This is also Scalia's biting dissent.

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.

While the polite disagreement between Justices centers on methodolgy (did the Majority use statistics to correctly identify a certain--but undefined--National trend?), the case contains a real debate about the role of these 9 Justices. And I think phrasing the question makes all the difference. Is it proper that 5 people in Washington, DC can determine what is outside the standards of decency?

Or, has the Majority correctly ruled concerning the standards of decency within our Country?

Or, is it proper that 3 Justices (Scalia, Thomas and Rehnquist) would shuck their powerful decision-making role regarding our Constitution?

Scalia would ask the first, O'Connor (and Kennedy) the second, and I the third.

A select few Jurists think the 8th amendment forever refers to those punishments that were cruel and unusual in the 18th century. I, and the Court's precedents, think that the phrase is left unspecified (why didn't they just make a list?), consciously, in order to allow the amendment to apply to the evolving standards of human understanding.

My hunch is this: the easier a person accepts this reading of the 8th amendment, the less scrutiny he applies to Kennedy's reasoning in Roper. I find the first several amendments purposefully and meaningfully absent of particularity. I think they are meant to shift and evolve. And for that reason all those that might affect that evolution have an awesome responsibility to tread carefully and honestly. I am not applying extreme scrutiny to Kennedy's methodology, but I am applying a deep trust that he and the Majority took seriously their important role in shaping the Constitution.