Bainbridge [UCLA]: Roper v. Simmons Commentary
Bainbridge [UCLA]: Roper v. Simmons
Edited by:

Stephen Bainbridge [UCLA Law School]:

"I'm increasingly opposed to the death penalty on both pragmatic and moral grounds, but I nevertheless found much to agree with in Justice Antonin Scalia's scathing dissent from the Supreme Court's 5-4 decision striking down the death penalty for offenses committed by juveniles (text of opinion):

  • In Lawrence v. Texas, Justice Kennedy essentially said that legislatures may not base laws on moral judgments. Hence, it was unconstitutional for legislatures to ban sodomy because legislators thought it was immoral. For the majority in Roper v. Simmons, however, Justice Kennedy claims that its perfectly appropriate for the Supreme Court to consider morality in deciding whether something is unconstitutional. Could there be a clearer example of how judges have usurped the legislative function in our country? As Scalia put it:

    Worse still, the Court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter: "[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." 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.

  • In the past, the Supreme Court has held that someone under the age of 18 can be mature enough to make the decision to abort a baby. Yet, now, the Court says a person under 18 is too immature to be executed following a fair trial. So minors are allowed to kill, but not to be killed? What kind of logic is that? As Scalia put it:

    In other contexts where individualized consideration is provided, we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations. For instance, we have struck down abortion statutes that do not allow minors deemed mature by courts to bypass parental notification provisions. … It is hard to see why this context should be any different. Whether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.

Once again, nine old men and women in robes have elevated themselves into a super-legislature in which they have exercised privileges they deny to our elected representatives. So much for having a democracy. Indeed, at this rate, so much for having a republic. [March 1, 2005: has the post]

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