"By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?" So asked an incredulous Justice Antonin Scalia in response to the latest outrage by the U.S. Supreme Court.
Five activist justices (not even nine) just imposed their personal social preference on every American voter, state legislator, congressman, and juror. Adding insult to injury, the supremacist five used foreign laws, "international opinion," and even an unratified treaty to rationalize overturning more than 200 years of American law and history.
Justice Anthony Kennedy's majority opinion in Roper v. Simmons is a prime example of liberal judges changing our Constitution based on their judge-invented notion that its meaning is "evolving." He presumed to rewrite the Eighth Amendment.
The murder involved in this case was particularly heinous. Christopher Simmons persuaded a fellow teenager to help him commit a brutal murder after assuring him they could "get away with it" because they were both under age eighteen.
Simmons met his pal at 2 a.m. and they broke into Shirley Crook's home as she slept. Simmons and his fellow teenager bound her hands, covered her eyes with duct tape, put her in her own minivan, and drove to a state park.
There they hog-tied her hands and feet together with electrical wire, wrapped her entire face in duct tape, and threw her body from a railroad trestle into the Meramec River. Mrs. Crook drowned helplessly, and her body was found later by fishermen.
Showing no remorse, Simmons bragged about his killing to his friends, declaring that he did it "because the bitch seen my face." He confessed quickly after his arrest and even agreed to reenact the crime on video.
A jury of his peers listened to his attorney's argument that youthful indiscretion should mitigate punishment; the jury observed Simmons' demeanor at trial and heard from a slew of witnesses. After an exhaustive trial and full consideration of age as a factor, the jury and judge imposed the death sentence as allowed by Missouri law.
The American system allows a jury to recommend life-or-death following due process and the applicable law enacted by the representatives of the people of the state. Nothing in the text or history of the Eighth Amendment denies Missouri juries and state legislatures the right to make this decision.
The Supreme Court's main argument was the "trend" since 1989 that seven countries (Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, Congo, and China) have banned juvenile capital punishment. Justices Kennedy, Ginsburg, Breyer, Stevens and Souter changed U.S. law so we can follow the lead of those seven countries.
Only four U.S. states have legislated against the juvenile death penalty since 1989 (but none of them was executing juveniles anyway). On the other hand, Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, Texas, Utah and Virginia all allow the death penalty for a seventeen-year-old who commits a particularly shocking murder.
The supremacist five claimed that most other countries don't execute seventeen-year-olds. However, most other countries don't have capital punishment at all, so there is no distinction between seventeen- and eighteen-year-olds.
Furthermore, most other countries don't allow jury trials or other Bill of Rights guarantees, so who knows if the accused ever gets what we would call a fair trial? Over 90 percent of jury trials are in the United States, and we certainly don't want to conform to non-jury-trial countries.
The supremacist five must think they can dictate evolution of the meaning of treaties as well as of the text of the Constitution.
They cited the United Nations Convention on the Rights of the Child, which our Senate year after year has refused to ratify. They also cited the International Covenant on Civil and Political Rights, which we ratified only with a reservation specifically excluding the matter of juvenile capital punishment.
DC sniper Lee Malvo was seventeen during his infamous killing rampage, so now serial killers like him won't have to worry about the death penalty. The terrorists and the vicious Salvadoran gangs will be able to assign seventeen-year-olds as their hit men so they can "get away with it."
We recall that the Supreme Court ruled in Planned Parenthood v. Casey in 1992 that it could not overturn Roe v. Wade because that might undermine "the Court's legitimacy." But in the Simmons case, the Court flatly overturned its own decision about juvenile capital punishment in Stanford v. Kentucky only 16 years ago.
As Justice Scalia pointed out in dissent, the Court's invocation of foreign law is both contrived and disingenuous. The big majority of countries reject U.S.-style abortion on demand, so the supremacist justices conveniently omitted that "international opinion."
Our runaway judiciary is badly in need of restraint by Congress. A good place to start would be a law declaring it an impeachable offense for justices to rely on foreign law in overriding the U.S. Constitution or congressional or state law.