Supremes Legislating From the Bench...AGAIN.

Yesterday's decision in Roper v. Simmons, ruling out the death penalty for those who committed their crime while under the age of 18, is a troubling one.

I'm not going to argue the morality of the issue itself, because that is an issue for the people of each State to decide - not an unelected court. Five justices made a decision that imposes their ruling as "the law of the land" because of their personal feelings on the matter. The tenth amendment to the Constitution is very clear that all matters not SPECIFICALLY given Federal jurisdiction in preceding articles are to be decided by each State as it sees fit, via the consent of the people.

The imposition of one standard on all fifty States is creating new law out of whole cloth - that is, judicial activism.

In OpinionJournal.com, the editorial board quotes from the dissent:

As Justice Antonin Scalia writes in a dissent that is even more pungent than his usual offerings, "The court thus proclaims itself sole arbiter of our nation's moral standards."

Justice Anthony Kennedy rationalizes the decision with the idea of "national consensus" - that is he believes that State laws allowing the death penalty for minor offenders violate modern American society's "standards of decency". According to whom? An unaccountable judiciary?

But wait a minute. This is contradictory to prior Court decisions that actually ignored this "national consensus" idea. As the WSJ explains:

This idea of invoking state laws to define a "consensus" also runs up against any number of notable Supreme Court precedents, including Roe v. Wade. When Roe was decided in 1973, all 50 states had some prohibition against abortion on the books. But never mind. Even weaker is the Roper majority's selective reliance on scientific and sociological "evidence"--the kind that legislatures (and juries) are used to weighing. The American Psychological Association claims in this case that killers under the age of 18 are incapable of making appropriate moral judgments. But this is the same organization that has told the Court in the past that teen-age girls are mature enough to decide whether to have an abortion without parental input. Which is it?

The irony is that the ruling of Roe v. Wade in itself was a form of judicial activism that created a "right" that does not exist in the Constitution but that the Justices felt should be found there. Regardless of your personal feeling on abortion - or the death penalty for minors - the fact remains that the Constitution does not specifically address issues such as these for exactly the reason that the Court is ignoring - it is not for a judge to decide. Rather the jurisdiction belongs to the State legislatures (those individuals that are subject to the will of the voters).

But what is the most chilling aspect of this decision is Kennedy's reliance on foreign opinion as a factor.

"It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty," Justice Kennedy writes. We thought the Constitution was the final arbiter of U.S. law, but apparently that's passé.

Apparently, Kennedy - with his four colleagues - seriously believes that the founders intended for the laws of this nation to be influenced by the laws of other nations. When did the American people have a say in foreign laws? They didn't. And the idea that the "standards" of another nation will determine - through a Court - how U.S. laws will be determined is very scary. This standard is not even being imposed consistently. For example, the vast majority of nations around the globe have much tougher laws regulating abortion than the United States does, so why aren't the Justices advocating that we conform to "international" standards on that issue? Because it doesn't fit into their philosophical paradigm.

Such inconsistency suggests that the real reason this Court has taken to invoking "international opinion" is because it is one more convenient rationale that the Justices can use to make their own moral values the law of the land. And it is no surprise that Justice Kennedy's majority opinion is joined by the four liberal Justices who have long been on record as opposing the juvenile death penalty--Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens. In Roper they finally found a case, and an inventive legal hook, on which they could lure Justice Kennedy.

Folks, this is a HUGE red flag of things to come if President Bush's judicial nominees are blocked from the bench. The Federal judiciary is peeling away our system of Federalism and taking away the right of the American voter to determine the laws that govern them. The only way to put a stop to it is to ensure that the judges appointed to the Federal bench are dedicated to preserving the Constitution and not "adapting" it to their personal whims because they think they know better than the American people.

Posted by: Gary at 09:15 AM | No Comments | Add Comment
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