Supremes continue their liberal social activism

The Wall Street Journal

Supreme Court Justice Anthony Kennedy has many attributes, but judicial modesty isn't one of them. His latest legislative diktat in the guise of a legal decision -- issued yesterday in Roper v. Simmons -- overturns 19 state laws on behalf of a "national consensus" that he alone seems to have defined.

Yesterday's ruling concerned a death penalty case, which isn't something we usually write about. But what makes Roper notable, and worthy of wider debate, is the way it symbolizes the current Supreme Court's burst of liberal social activism. From gay rights to racial preferences and now to the death penalty, a narrow majority of justices has been imposing its own blue state cultural mores on the rest of the country. We suspect it is also inviting a political backlash.

No doubt most Americans will concede that the death penalty for 16- and 17-year-olds is a difficult moral question. That is why different U.S. states have different laws on the matter, and we'd probably oppose such executions if we sat in a legislature. But rather than defer to the will of voters as expressed through state legislatures and at least two ballot initiatives (in Arizona and Florida), Roper imposes the view of five justices that the execution of 16- and 17-year-olds is both wrong and unconstitutional. 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." Mr. Kennedy rests his decision on his assertion that American society has reached a "national consensus" against capital punishment for juveniles, and that laws allowing it contravene modern "standards of decency." His evidence for this "consensus" is that of the 38 states that permit capital punishment, 18 have laws prohibiting the execution of murderers under the age of 18. As we do the math, that's a minority of 47 percent of those states. The dozen states that have no death penalty offer no views about special immunity for juveniles -- and all 12 permit 16- and 17-year-olds to be treated as adults when charged with non-capital offenses.

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? Perhaps the most troubling feature of Roper is that it extends the High Court's recent habit of invoking foreign opinion in order to overrule American laws. "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 passe.

In invoking international "opinion," however, the majority also seems rather selective. Justice Kennedy cites the United Nations Convention on the Rights of the Child, which outlaws the juvenile death penalty. But that Convention also prohibits imprisonment without parole for juvenile offenders -- a penalty favored by some, if not all, 50 states. Is the Court ready to sign on to that international standard too? 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 Mr. 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.

If there is a silver lining to this case, it is that it probably disqualifies Justice Kennedy from any consideration to be promoted to chief justice when William Rehnquist resigns.

Some in Washington, and even some in the Bush administration, have floated this possibility as a way to ensure an easy Senate confirmation.

But we doubt that the red state voters who re-elected President Bush, and gave Republicans a larger majority in the Senate, did so to promote a Justice who thinks their values are an affront to "standards of decency."