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.

Jacksonianism seems to have demonstrated its limits.

“My idea of a good system is one where judges [are] mindful of their limitations (they’re not elected[)]”

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.

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. :)

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 . . . .

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.

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?

“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)

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[;]. . . . squandering goodwill can ultimately have consequences for the Court’s place in our society.”

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).

(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]

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.