The Legislative Bench

Do not miss this: the WSJ's lead editorial excoriating the Supreme Court's Roper decision, which the Court announced yesterday. Here are some excerpts:

. . . 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.

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Justice 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% 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 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?

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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 . . . We thought the Constitution was the final arbiter of U.S. law, but apparently that's passé.

The WSJ notes that Roper effectively kills any chance Justice Kennedy had to be nominated Chief Justice, which the Bushies were contemplating in order to get smooth sailing for a CJ nominee.

More reaction to the Roper opinion:

First, the Washington Times notes that the opinion means that Lee Malvo will not face the death penalty for shooting random civilians in the Washington D.C. sniper attacks from 2002. See also Tony Blankley's column in the same paper

Second, Orin Kerr, a law prof. at George Washington U. and former clerk to Kennedy, eviscerates his old boss's logic and the public policy implications of the decision in two separate posts, available together here.

Third, Mark Levin thinks Kennedy is now the most activist judge on the Court, a position I alluded to without explicitly stating in this post.