A new challenge to Roper
(NOTE: From time to time, the blog is going to post reports on interesting new petitions or appeals to the Supreme Court. This is the first of the posts in this new series. There is no hard-and-fast standard on which ones we will select for posting; for example, even if a petition does not seem likely to be granted, in our view, we may post on it anyway because of likely interest in it. The one difference from earlier posts is that each of these will appear only if an electronic copy of the petition is made available, so that we can link to it. When we become aware of a new filing, we will make a decision on whether to post on it, and we will invite counsel to share an electronic version with us. Of course, counsel may volunteer copies to us as they choose, for our consideration.)
Among the more controversial decisions the Supreme Court has issued recently, none may have stirred more negative reaction than Roper v. Simmons, the decision holding that it is unconstitutional to impose the death penalty on an individual who committed a crime when under age 18. That ruling has drawn heavy criticism not only because it changed the law on this capital punishment issue, but also because the Court, in reaching the result, found some guidance in law from foreign courts.
The state of Alabama has begun a new effort to try to get that decision overturned. In a new petition for review filed last month, Alabama v. Adams, the state presents this simple question: “Whether this Could should reconsider its decision in Roper v. Simmons, 543 U.S. 551 (1005).” The petition for cert. (docket 05-1309), including the brief Alabama Supreme Court decision at issue, can be found here. The Roper decision can be found here.
The Court’s membership, of course, has changed since Roper was decided on March 1, 2005. It was a 5-4 decision. The five justices in the majority all remain on the Court. Among the dissenters were now-retired Justice Sandra Day O’Connor and the late Chief Justice William H. Rehnquist. The initial issue confronting Alabama in the new case will be whether four Justices would vote to review the case in the face of the continued presence of the five-Justice majority in Roper.
The new appeal involves the case of Renaldo Chante Adams, who was 17 years old on August 20, 1997, when he stabbed a pregnant woman to death after raping her in her home. Adams was found to have ordered the woman’s husband to go out, first to a bank ATM and then to a grocery store, to get money. Adams was convicted of capital murder and first-degree robbery, and was sentenced to death for the murder convictions. The sentence was upheld by the Alabama Court of Criminal Appeals in 2003, prior to the Roper ruling. Last December, the Alabama Supreme Court reversed the death sentence and sent the case back to lower courts “for a determination of the impact of Roper on Adams’s sentence.”
The state’s appeal to the Supreme Court argues that “only this Court…can set matters straight” on a decision that “has been roundly criticized.” It argues that the Court should act promptly, saying “the Court should step in to correct its error now, before it is too late.” The Court, it adds, should not allow the decision to become “frozen into constitutional law.”
On the merits, it argues that “there is no magic — and certainly none of the constitutional variety — in the age 18. Just as there are adults who, for whatever reason, cannot fully comprehend the wrongfulness of their actions, there are adolescents — 16 and 17 year-olds, to be sure — who can. A teenager, like Adams, who plots like an adult and kills like an adult should be held responsible for his choices like an adult.”
(Howard Bashman at How Appealing blog has some interesting press coverage of the Alabama case, including a rather startling op-ed piece by a member of the Alabama Supreme Court, who was recused because he had been a prosecutor in the case, criticizing his colleagues for following the Roper precedent. Among Justice Parker’s comments: “State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case.” The links to that column and other news items are on Howard’s blog, here.)
Good for Alabama.
Justice Parker’s op-ed was great, I think. The power of a Supreme Court decision rests, as a practical matter, on the willingness of the polity to follow it. Andrew Jackson’s statement, “let him enforce it” is a horror to most lawyers, but since the courts control neither the purse nor the sword, it is a very real part of our constitutional system.
Decisions like Roper, which speak in terms of the state not being able to deprive a juvenile of the ability to grow up and obtain a mature understanding of his own humanity, undermine the Court’s legitimacy. And at some point, the question must be asked, do 300 million people need to bend to the will of an unelected five, if the unelected five, to put it charitably, bend the law to their will? As a practical matter, the answer at some point becomes “no”. And as a practical matter, there is very little the unelected five could do about it.
In earlier posts, I have alluded to this reality. The Supreme Court should be very wary of inserting itself into warfighting. It should also be very wary of making too many decisions like Roper that give rise to legitimate criticisms that it acted according to its policy preferences rather than the law.
In my opinion, Roper was an insult to America, and a grave one. The Supreme Court should issue a mea culpa forthwith.
Comment by federalist — April 20, 2006 @ 5:38 pm
It’s unclear, given the remarkable (relatively speaking) number of federal laws overturned by the Rehnquist Court, why Roper per se deserves the attention given by the previous post.
I’m sure the opposition is deeper. Why not also reverse Atkins v. Virginia? O’Connor after all voted with the majority there. But, I need not stop there. Any number of decisions that ultimately boil down to a 5-4 majority, lib and cons., can be cited. Decisions that affect more than the few death penalties involving minors that remain.
I think also the comment about foreign law should be referenced as well. Sure enough, the SC in a long section — mainly an extended aside, referenced foreign law. Since the opinion in effect overruled a 5-4 ruling itself, it probably helped put the thumb on the scales for Kennedy. But, looking at previous capital opinions, references to foreign law is far from absent.
Roper seems a nice scapegoat — the usual suspect when foreign law is referenced. And, the most one can say is that it was a thumb on the scales of a ruling decided on other grounds. The other usual suspect is Lawrence v. Texas. There the foreign cite is much briefer and at least partly in response to the “Western Civilization” reference by CJ Burger supporting sodomy laws.
Anyway, targeting Roper is a bit strange.
Comment by Joe — April 20, 2006 @ 6:17 pm
Like Joe, I also don’t understand why Roper is being targeted.
The funny thing is that, apparently, Sadaam Hussein is being charged with executing juveniles involved in a supposed assassination conspiracy against him. Maybe he should ask for Justice Parker to sit on his war crimes tribunal.
Comment by Snowball007 — April 20, 2006 @ 6:44 pm
Much of the criticism directed at Roper is valid. Even so, Justice Parker’s suggestion that state supreme courts should stand in the courthouse door in the George Wallace tradition is beyond the pale. The United States Supreme Court was created by the Constitution for the specific purpose of giving a definitive answer to questions of federal law, to be followed by all other courts whether they agree or not. The alternative is chaos.
Justice Parker’s claim that Supreme Court decisions only bind the parties and need not be followed by other courts is nonsense. Establishing binding precedent is the primary reason for the Court’s existence. This is an essential part of our constitutional plan, which all judges are sworn to uphold.
Alabama may get an “E” for effort with this petition, but the effort is doomed. The chances of any of the Roper five changing their minds are in the same ballpark as my chances of winning the lottery.
Comment by Kent Scheidegger — April 20, 2006 @ 6:58 pm
“State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case.”
For those who think that Parker’s comments are “startling”, I have a question for you: Have you even bothered to follow the Supreme Court’s own Establishment Clause jurisprudence recently??? That is EXACTLY the philosophy that they follow and embrace.
Since the Court itself declines to follow its own bad precedents by simply splitting extra-fine hairs rather than explicitly overruling their poor reasoing, why shouldn’t other courts take the hint and start doing the same thing in other areas of law?
Comment by Levine2001 — April 20, 2006 @ 9:52 pm
Federalist:
You can’t be serious? The citation of foreign law is, to borrow the title of a forthcoming law review article, a tempest in a teapot, that plays well to those who don’t know their history or chose to rewrite the Court’s history. Even the quickest search of Westlaw indicates the Supreme Court in the first 100 years of the Court cited foreign law over 100 times. The Court has never given, and in Roper is no exception, “controlling” weight to foreign law. Roper merely used foreign law, here jus cogens, to add persuasive authority to the legal conclusion it had already reached.
Comment by All Writs — April 20, 2006 @ 11:30 pm
I don’t recall mentioning foreign law. But the Court’s citation to foreign law is hardly persuasive in that case.
And I am serious. I agree with Justice Parker– Roper is illegitimate. It is not law in the sense that it is product of judgment–it is the product of five people’s policy preference. And, as such, where does the Supreme Court get the right to demand fealty? In other words, if the Supreme Court blows off the law, then how can it complain when others follow suit? Unless, of course, we have a system where the supreme law is nothing more than the say-so of the courts, and every other law is subordinated to that. Now if people want to characterize our system that way, that’s fine, but I like to think that there is something called “law” that’s more than some judge waxing poetic about a juvenile murderer engaging in self-discovery within the walls of a prison. Last I checked, the ability of a juvenile murderer to be all that he can be was not in the Constitution. But I digress
My idea that courts, if they push to far, will not have the last word on the law may sound Jacksonian (i.e., it’s their decision, let them enforce it). But really, is the idea that the country must listen to the Supreme Court, no matter what it says, any less radical than mine? The reality is that if the political branches refuse to enforce the Supreme Court’s edicts, they become meaningless. That is every bit as much a part of our system as judges saying what the law is. Remember, the judicial branch controls neither the sword or the purse.
In my view, when decisions like Roper come down, the Supreme Court strips away some of its legitimacy. Why, because the only thing supporting its ruling is raw naked power–i.e., that five Justices said so, and they get to make the rules. Well, there are a lot more centers of power in American politics.
That is all I am trying to point out. Personally, in the right case, I would be happy to see the people defy court orders (maybe the property taxes in Kansas ordered by some off-the-wall district judge), and I would like to see the political branches simply refuse to enforce the court’s orders. I think the republic would survive, and I think that there would be a lot less arrogance on the bench.
Comment by federalist — April 21, 2006 @ 12:48 am
Federalist, again, please explain why Roper per se is mere whim, not reasoned constitutional judgment. You might not agree with the result, which is fine.
But, reading the opinion, one does find legal and precedential reasoning used. You can be like Scalia/Thomas and not like current capital jurisprudence (actually 8A … no, criminal justice … no …) overall, but you need to attack a lot more than Roper.
This is underlined by your concern with the SC demanding “fealty.” Very Jeffersonian state judge railing against the Marshall Court. But, even state judges can be said to be lawless. My own NY Court of Appeals has been so labeled.
I don’t like drug laws. I think I will just ignore them. You can choose the “right” ones. The executive and legislative after all these days are more dangerous at the end of the day than the courts and just as liable to be wrong too.
Comment by Joe — April 21, 2006 @ 1:18 am
I’m sure btw that ignoring a few judges won’t be the end of the republic … I know since this is done all the time in various contexts, just ask defense attorneys. Ironically though such lawlessness in the 1780s was one reason why a stronger federal gov’t was felt necessary.
Comment by Joe — April 21, 2006 @ 1:20 am
There are plenty of decisions that can be attacked. And you’re right, we do need more than one isolated case from the Supreme Court, but I don’t think that you’re really addressing my point. If the Supreme Court decides to enshrine policy preferences as the Supreme Law of the Land, then backlash is inevitable. AEDPA and PLRA are prime examples, although that was done in the context of duly enacted statutes. Justice Parker’s editorial is another. Now it’s all fine and good to say, “Justice Parker, you’re wrong.” But you’ve got to deal with the reply, “So what, so are they. And if they get to ignore the law, why don’t I?” The answer that bad things will happen is not good enough–since the riposte will be “Well, the Court shouldn’t have done that in the first place.” The only other answer is that the Supreme Court is right simply because it says so–that’s fine in the abstract, but lots of people don’t think so. Andrew Jackson certainly did not, and I’d be willing to bet that a lot of our elected officials do not either.
Comment by federalist — April 21, 2006 @ 2:00 am
Federalist,
You are like every other disgruntled partisan who complains every time the court issues a decision that runs counter to your policy preferences. It reminds me of the whole Terry Schiavo nonsense: the “culture of life” clan wanted federal judges to invent a constitutional right that would have prevented Schiavo’s death, and then complained that federal judges were being activists and enshrining their own policy preferences into the law by filing to do so. It was the ultimate in hypocrisy, and I would love to see you or anyone refuse to obey a federal court judgment…..
Comment by Steve — April 21, 2006 @ 10:10 am
I think that with respect to Schiavo, the real issue, namely the constitutionality of putting someone’s life in someone’s hands who has checked out in a sense, was kind of lost, and it is unfortunate that dismissive comments such as yours clouded the debate–I think we can all agree that, processwise, the idea that (a) a husband who fathers children with another woman (and I am not criticizing) should probably not have life-and-death decisionmaking authority over his wife and (b) the idea that one’s wishes about being kept alive don’t need any more memorializing than a remark. That’s the debate that needed to be had. And you don’t have to be a “culture of life” person to think that way. And, by the way, the Schiavo stuff was pretty bi-partisan as I recall when you look at the votes.
As for the court order thing, I don’t see a need to get personal. I don’t think that, as an empirical matter, my observations about judicial supremacy, and reactions thereto are wrong. The Court’s power in our society depends a lot on the reserves of goodwill that it has garnered over the years, and goodwill that I think is being squandered by decisions like Roper or decisions which put a shelf life on affirmative action. And squandering goodwill can ultimately have consequences for the Court’s place in our society. Members of the Supreme Court seem to admit as much. Ginsburg and O’Connor seem to be highly sensitive to political criticism.
We’ve seen the Court bend to political will in the past–the “switch in time”, Andrew Jackson’s “let him enforce it” etc. etc.
As for the obeying of federal judgments, I can tell you one judgment that would not get obeyed. As you may be aware, Indian claims cloud title over vast tracts of land in New England and New York, as a result of a Supreme Court decision. That judgment is currently being used as leverage by Indian tribes to get payments etc. from states. Do you think that if push really came to shove, i.e., the states simply told the Indians to get lost, that federal courts would start throwing people off their land. Hardly.
Personally, I would like to see certain federal courts get their comeuppance. Like it would have been great if Philadelphia had simply told the federal judge ordering the release of a bunch of criminals (a decision which had a high price in blood, by the way) to jump in a lake. Of course, to be successful, Philadelphia would have need the support of the state and the President. (remember, this is about raw power). But if Philadelphia had gotten that support, there wouldn’t have been thing one that the judge could do about it. Just as Marshall couldn’t do thing one about Jackson’s treatment of the Cherokees. And for that matter, there wasn’t thing one that the victims of the Philadelphia decree could do either. This is about power.
Comment by federalist — April 21, 2006 @ 12:11 pm
Federalist,
How is this not the product of five justices’ interpretation of the 8th and 14th Amendments rather than the policy preferences that you claim? This seems more like a policy preference you have, and the belief that those who share your preference should not have to abide by rulings of the Supreme Court–an idea which is directly contrary to the Constitution of the United States. Regardless if the Court’s power does appear to “depend[] a lot on the reserves of goodwill that it has garnered over the years,” that is a simple way to attempt to avoid the reality of the Constitution, which says that its Supreme power reaches all cases arising under the Constitution.
Comment by nicholas — April 21, 2006 @ 2:48 pm
I suspect that more than a few people would say that federalist’s comments about Roper — “the product of five people’s policy preference,” “an insult to America, and a grave one,” “undermine[s] the Court’s legitimacy,” “do 300 million people need to bend to the will of an unelected five” — dovetail perfectly with their views of Bush v. Gore. Should we have refused to go along with the Court on that one? No, we shouldn’t have, because as Kent says (and bravo to him for saying it, by the way), the Supreme Court exists in no small part to give final answers, even when they’re “wrong” answers, which inevitably some will be. Criticism of Roper should (and no doubt will) continue, because the Court is not perfect and it’s not above criticism, but it’s awfully dangerous to begin suggesting that its decisions should be flouted.
Comment by stephanrjohnson — April 21, 2006 @ 3:48 pm
fed,
the problem with your (and Parker’s) argument is not so much the assertion that we ought to ignore ‘illegitimate decisions’ it is how to objectively determine what decisions are illegitimate. you just baldly assert that roper and some other cases are non-legal policy decisions. why? what criteria are there for making this determination?
absent objective criteria, each person becomes his own law. state A thinks Roper is illegitimate, and so ignores it. State B thinks Brown is illegitimate and so ignores it. State C thinks Bush v. Gore is illegitimate and so ignores if. State D thinks Pierce v. Soc’y of Sisters is illegitimate and so ignores it. And so on and so on.
Someone has to have the final say so. It may be a bad decision, it may be a decision I do not like. But it beats anarchy.
Comment by wheeler — April 21, 2006 @ 4:04 pm
Joe, Steve (and others): Let’s set aside the foreign law debate for a moment. You would agree wouldn’t you that one of the primary reasons for the Court’s decision in Roper was the fact that “A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18.”? And since a majority of states reject it, it must therefore be unconstitutional for ALL states. That is their reasoning.
(Don’t beleive me that this is the core reasoning behind the decision? Then feel free to (re-)read it for yourself. http://www.law.cornell.edu/supct/html/03-633.ZO.html )
THAT is why the decision is based on whim instead of “reasoned constitutional judgment” Joe. Do you still deny this? If you do, then your definition of “reasoned constitutional judgement” is meaningless since you could thus overturn ANY precident (including Brown v. Board, etc.) based on an “evolving standard of decency” and citations to previous Court cases that are neither on point, nor connectied to the text of the Constitution in any meaningful manner.
STILL believe that the decision was based on “reasoned constitutional judgement”??? Then what do you make of O’Connor’s dissent where she states, “the rule decreed by the Court rests, ultimately, on its independent moral judgment that death is a disproportionately severe punishment for any 17-year-old offender.” Even she couldn’t buy the fact that this decision was based on “constitutional judgement”.
If we are thus required to follow the dictate of interpreting the Constitutiona acording to chanign political polls, it is inevitable that you will get this kind of backlash (and YES, it SHOULD be encouraged if this is going to be the level of reasoning the Court gives us).
To qoute Scalia : “What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years–not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to “the evolving standards of decency,” ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people’s laws barely 15 years ago now solidly exists. 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.’ Ante, at 9 (internal quotation marks omitted). 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. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.” [http://www.law.cornell.edu/supct/html/03-633.ZD1.html]
Comment by Levine2001 — April 21, 2006 @ 6:49 pm
We’re missing Federalist’s point. He’s set up a normative model for how the Court should behave in crafting its decisions. We can address this point without getting tangled up in questions of internationalism and when majorities are too small to be majorities.
“My idea that courts, if they push to [sic] far, will not have the last word” (emphasis added).
In a further post, Federalist seems to suggest (I may be wrong here) that this point comes when “lots of people” or “a lot of our elected officials” disagree with notions of the supremacy of the Supreme Court; and (in a yet further post)
In short, whether a decision is right depends on whether it is supported by a majority of Americans, and whether the Court has made other unpopular decisions recently.
This argument is easily tested, by hypothetical:
What percentage of Americans would have had to oppose integration to make Brown v. Board wrongly decided? (Where is the “point” you speak of in your first post)?
If Strom Thurmond was serving out his second term (though with an identical Court) when Brown was decided, would the case have been wrongly decided?
If the Court in its prior term had wasted its “goodwill” to the point where Americans’ trust in it had reached a low ebb, would Brown have been wrongly decided?
And finally, if all you answers avoid negation of Brown, is there a “perfect storm” of these three factors that could sink Brown even though no one could?
(Note that I’m asking if these external factors, and these alone, could make Brown seem wrongly decided. Arguments such as “Brown’s own logic falters” are immaterial. I am only trying to test the democratic majoritarian nature of Federalist’s test for the Court’s decisions).
Comment by dunno — April 21, 2006 @ 8:34 pm
The extended quote is more useful actually:
As in Atkins, the objective indicia of consensus in this case–the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice–provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as “categorically less culpable than the average criminal.”
Thus, it fits into broader 8A jurisprudence. In fact, O’Connor overall agrees with such jurisprudence, just disagreed with the reasoning in this specific case. Likewise, it is not just the will of a majority — the real numbers are more like a supermajority.
Finally, section IIB explains why this particular state development has constitutional signficance (”Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. …)
As to Scalia suddenly being concerned with quick turnaround, where was he in Payne v. TN? He in the past underlined how doctrine develops [e.g. Atkins being decided] over time, including when new justices come in (or mature — Kennedy was new to the Court when Stanford v. Ky was handed down), or when 5-4 rulings are at stake. Separate but equal was upheld in the 1940s. What changed in 10 years?
Scalia doesn’t like the current capital jurisprudence. He made this crystal clear repeatedly. O’Connor did join the dissent in this case, but on the facts. It was something of a close case. Reasonable people can disagree with it. But, again, where is this proof of unique wrongdoing here?
Comment by Joe — April 21, 2006 @ 8:53 pm
The int’l law bit is a sideshow, true, but it is one that is brought up a lot … so one can’t ignore it too much.
Anyway, as to public support, seriously … the majority oppose executing minors. Al is not exactly a leading indicator in this respect. Furman v. GA is quite different in this respect. The public clearly still supported death penalty as a whole. (Furman turned on clear standards, but let us say it was prohibitonist).
Likewise, one might say Roe bit off more than it could chew too fast as compared to Griswold. Or, more recently, gay marriage in MA. This is why Roper is really a poor example — it is just not really to controversial, even if as a 5-4 decision it is by nature more questionable. See also the sovereign immunity cases … leading to some tempering of the doctrine.
Anyway, overall, popularity is not really the test. Constitutional rights in a republic are not by popular rule. True enough courts need to restrain themselves to retain legitimacy. This is on some level a valid thought. Roper, however, is not the example I would use.
As to requests like this one, fine enough. When lower court judges refuse (Art. III — inferior courts — and VI — Supremacy Clause) to follow the SC, things are a bit different.
Comment by Joe — April 21, 2006 @ 9:00 pm
With respect to the Court’s legitimacy, the issue is a complicated one. Obviously, a court of law cannot simply bend to popular will. That is not law either. But the problem, it seems to me, is what are society/individuals supposed to do when the courts themselves are lawbreakers or when they simply substitute enshrine their will as the law of the land.
Roper is such a situation. I won’t repeat the criticisms of Roper. Suffice it to say that in 1989 we could do it, and now in 2006 we cannot. No matter that two of the largest states in the union approved of the practice, no matter that Florida’s citizens voted on the issue (albeit indirectly), and no matter the obnoxiousness of the “evolving standards of decency/maturity” phraseology when applied to a moral question as to whether juveniles can deserve death. (Obviously, that phrase does make sense in terms of the conditions of confinement etc.)
My idea of a good system is one where judges, mindful of their limitations (they’re not elected, (so their decisions do not reflect popular will), lack of expertise, inflexibility of judgments etc.) strive their utmost to “get it right” and to leave their policy preferences at the door. That does not describe many many members of the judiciary today, and I dare say that it does not describe all of the Justices of the Supreme Court. When you have a sitting Justice saying, well, gee, we don’t need an Equal Rights Amendment because our decisions have done the same thing, it is beyond question that that Justice’s personal views have infected the Justice’s actions on the Court.
Now, to borrow a phrase, there is play in the joints. The Court and courts in general get a lot of leeway. And not every bad decision is going to create problems. But, I would argue that the power of society can have an impact on the Court. The “switch in time” is one example. The other is the Court’s explicit statements about “reliance” on its decisions, which, really, when you get right down to it, are sotto voce amendments to the constitution. In other words, the Court acknowledges that pure law is not the only consideration, but rather what the society as a whole expects.
Fundamentally, though, what I am saying is that courts have no right (although they may have the coercive power) to demand obedience to the law (i.e., judicial supremacy) when they themselves flout it. Elsewise, all law becomes subservient to the law that what the court says goes. What I am saying is that society has some recourse. At some levels, it’s things like AEDPA or PLRA. At others it’s people like Tom DeLay criticizing them and threatening their jurisdiction. At times it’s state courts simply blowing off the law or state judges making comments like Justice Parker’s.
Now, myself, I would like to see comeuppance. It would have been interesting if Arizona had said, “Sorry guys, you told us Walton was ok, we followed it, and Ring still gets executed.” Now obviously, something like that is not going to happen, but let’s imagine a scenario where the judiciary makes a decision that has some really bad consequences. Let’s say that we have a major terrorist attack caused by someone whose release can be credibly blamed on the judiciary. Say, the president says, gee, we had this guy, but the courts made us let him go, and continued the blame game. Does anyone think that the courts’ real world power would not be seriously diminished?
It is interesting to think what would happen if, say, for example, a state told a federal judge to jump in a lake and then the president did not send troops. It does, of course, have the potential for great harm . . . .
Comment by federalist — April 21, 2006 @ 9:47 pm
I cannot believe that a simple petition for cert, filed by a couple of lawyers in Alabama, has set off such a firestorm on this blog. By the reaction, one would think that the petition had been granted, and the future of Western jurisprudence hung in the balance. From a tactical perspective, assuming there is a concerted effort by conservatives to overturn these kinds of decisions, this effort is a mistake. The “Roper 5″ will change their position; thier egos will simply not allow them to overturn a bad decision so close in time to making it. There is a 50/50 chance that Bush will get one more nominee before his term is up. He will in all likelihood nominate someone who does not share the philosophy of the Roper court. So why do it now instead of waiting? And there is no shortage of young punks who commit atrocious homicides. I am surprised that no enterprising politician has turned this into a political issue. The facts of Roper reflect the acts of an evil human being. I would think the cultural mores of middle America would be offended by suggesting that we are governed by the moral whims of the French or Swiss when determing how we punish criminals who commit acts in our own country.
Comment by Dennis Bedard — April 22, 2006 @ 6:54 am
“Suffice it to say that in 1989 we could do it, and now in 2006 we cannot.”
Suffice to say in 1939 Topeka Kansas could have state supported segregation, but in 1954 it could not. What does this prove? Doctrinal change is not “flouting” the law, especially if the old doctrine was wrong.
You apparently think Scalia was wrong in Ring though. He too “flouted” the law. I welcome such consistency esp. since he is sometimes cited by those on your side.
As to “policy” judgments, re-read the medicinal marijuana case. Who “supported” the policy of targeting use? Hint: not the majority. OTOH, “policy” is used so broadly here that things like a particular view on free speech or equality (pro or anti affirmative action) is “policy.” This is fairly common. It is also rather unfortunate.
As to the last comment, the case just raises things worthy of discussion, things that raise our emotions. Likewise, so sorry, most states — not just the French — feel the policy is bad. The fact you and others continue to think the decision was made by int’l law grounds underlines why the issue raises so much discussion.
Anyway, I have posted too much on the subject. I promise to take a break from posting here for a bit. :)
Comment by Joe — April 22, 2006 @ 12:14 pm
Federalist
Jacksonianism seems to have demonstrated its limits.
If we assume that the Founders were rational actors, it is highly unlikely that, had they wanted a judiciary responsive to majoritarian ideals, they would have provided appointed judges with life tenure (which has a tendency to increase independence in judicial decisionmaking). Because the Founders did grant judges life tenure (at the same time that they discussed the dangers of a similar arrangement for the elected Executive), it is safe to assume that what we now know as Jacksonianism did not factor highly into their creation of the judiciary.
Comment by dunno — April 22, 2006 @ 12:49 pm
I don’t think any of those posting have really refuted Federalist’s logic. He (she?) seems to be making the following argument: Policy preferences are fundamentally different than legal judgment. Any decisions that are made based on the former have no authority apart from their ability to be backed up by force (presumably legal judgment does hold authority beyond coercion). Roper represents an instance of the enshrinement of policy preference; since it does not represent legal judgment, the only reason that lower courts would have to follow it is the potential of being coerced into doing so.
When put this way, I think it becomes clear that this argument is inconsistent with a lot of the other things Federalist says about coercive power, Jacksonian legalism, and the court being told to jump in the lake. The coercive power argument seems to be saying that the legal system is simply one based on potential coercion, so if the court orders something which the elected officials think will cause negative social utility, those officials shoult flout the order (e.g. the Philadelphia releasing criminals example). If this were the case, then it shouldn’t matter to an official whether a decision was based on policy preference or legal judgment. I think Federalist’s argument would be that this coercive power notion should only kick in when the Court is engaged in policy preferencing rather than legally judging. Recognize, though, that there’s nothing about the coercion argument which leads to this conclusion, because according to the coercion argument the best legal system will result from the constant struggle for power between the branches, mediated by the electoral power of the people. Authority or non-authority would only matter as judged by the voters.
To briefly look at Federalist’s main argument. I don’t buy any of the premises. It seems that at the level of the Supreme Court, decisions are typically based in policy preferences rather than determinate legal judgment. The few sentences the Bill of Rights gives to issues like free speech or equality under the law cannot possibly directly determine their interpretation in the set of specific circumstances the Court has to deal with. In Brown v. Board, for example, the Court found that equal education required integration of schools and that separate and equal was an impossibility. This seems to be a policy consideration rather than one which descends directly from the language of the Constitution.
Finally to the specific case of Roper, the cruel and unusual punishment provision seems to demand that the Court ascertain what is a fair and typical punishment. While the Court may have drawn that line incorrectly in this case, I fail to see how their attempting to ascertain the norm of juvenile death penalties represents a policy preference rather than the proper legal way to interpret that particular clause. If Federalist thinks that the cruel and unusual punishment clause of the Constitution doesn’t demand that type of legal judgment, I’m curious as to what content, if any, he believes that clause to have.
Comment by Josh — April 22, 2006 @ 2:07 pm
It seems to me that Federalist’s comments demonstrate the beltway mentality at its most virulent. The idea that a majority, or even a substantial minority, of Americans have lost faith in the Court’s legitimacy because of Roper seems overwrought. If a majority has lost faith, it is more likely to be because of Bush v. Gore, not a case most of them never heard aware of. I haven’t viewed the most recent poll data, but I’d wager that the Court retains greater legitimacy out here in the hinterlands than a Congress widely viewed as overwhelmingly corrupt and interested only in perpetuating itself in power, not to mention an administration considered inept, at best, by all but the neocon faithful. And Congress is little less dependent on the Executive to enforce its dictates than the Court is. I don’t mean to suggest that the Court hasn’t spent some of its capital in recent years, but no more so than the other branches, and no is suggesting that we just ignore them.
Comment by skeptik — April 23, 2006 @ 4:06 am
What is most disturbing about the Roper decision is not the Court applied what it conceded were “evolving” standards of decency in determining what constitutes cruel or unusual punishment. There is, after all, a reasonable argument that the Founders intended succeeding generations to apply their own standards of what constitutes an Eighth Amendment violation. Rather, what it much more disturbing is that the Court explicitly abandoned the prior understanding that it would look to society at large in determining what is cruel/unusual — because the Roper majority obviously recognized that a large portion of society does not view execution of 16 or 17 year olds as being beyond the pale. So instead, Justice Kennedy said that henceforth, Justices would examine their own consciences in determining Eighth Amendment issues. Once Justices claim the right to decide legal issues by reference to their own consciences alone (or, to be fair to Justice Kennedy, primarily by such reference), on what basis can they demand obedience by those whose consciences tell them otherwise?
Comment by Richard Samp — April 23, 2006 @ 9:14 pm
I’ll try to be brief:
Two main points:
1) What is the reaction of the polity as a whole when Supreme Court or–is the polity forced to accept? If your answer is yes, then you have a hierarchy of law, so to speak, i.e., that the supreme law of the land is the courts’ say-so. That’s fine, but recognize (a) that many have disagreed and (b) that you have reduced law to a certain extent, to ipse-dixitism. And, to a certain extent, it is no longer what we consider law, e.g., Dickerson, which is, on its face, ultra vires.
2) The courts’ power, to a large extent, is reliant on society as a whole accepting their legitimacy. And since that is built into our system, putting the moral questions aside, society push-back in whatever form it takes, will impact the courts’ power. This is part of the mix in our system.
Personally, I react viscerally to quotes like this:
“The practice of executing such offenders [juveniles who were under age 18 when they committed offenses] is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice.”
That was from a dissent penned by Justice Stevens and joined by Ginsburg and Breyer in a Kentucky juvenile case. Now I ask, and in all seriousness, who the hell are these arrogant people to say such a thing? People who believe that savage murderers like Simmons should be executed are “uncivilized” (that is the unmistakable implication of that statement). And how dare they call this practice “shameful”? Is that the respect they have for statutes which were constitutional when enacted. Is that the respect they have for the results of the democratic process? The above dissent is an affront to the Nation. And responses like those of Justice Parker are foreseeable.
And I, for one, would have little problem seeing a little comeuppance. And if that means that Justice Ginsburg gets a little upset about politicians criticizing her, so be it.
Comment by federalist — April 24, 2006 @ 1:54 am