My comments yesterday about the Supreme Court’s decision overturning all statutes providing for the execution of juvenile murderers focused on the Court’s reliance on foreign sentiment — or, more precisely, on the treaties that foreign governments have signed that relate to the issue. The Supreme Court’s propensity to defer to what foreigners think is a disturbing trend about which we have occasionally commented. However, it is not our only, or even our primary, objection to Justice Kennedy’s opinion. Indeed, I noted that the majority’s reference to foreign practice is a symptom of the problem, not the problem itself. The underlying problem is that the Supreme Court is “just making it up.”
Tony Blankley demonstrates the point in a devastating Washington Times editorial:
It happens that only 15 years ago the Supreme Court found that the kind of statute in question was constitutional. But, rather than overturning that case, the court yesterday found that in the last 15 years a national consensus against such punishment had emerged. The majority based that conclusion on the fact that “18 states — or 47 percent of states that permit capital punishment — now have legislation prohibiting the execution of offenders under 18,” and four of those states have adopted such legislation since the Supreme Court’s ruling of 15 years ago.
As Justice Antonin Scalia fumed in his dissent: “Words have no meaning if the views of less than 50 percent of death penalty States can constitute a national consensus. Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time.” In this case, a majority of relevant states approve the practice.
Scalia is right — words have no meaning to this Court. The law is what a handful of self-aggrandizing old men and women think it should be, without regard to text and without meaningful deference to the democratic processes.