Scalia, lethally angry

The Wall Street Journal is all pissy about yesterday's Supreme Court ruling that executing minors violates the prohibition against cruel and unusual punishment, and that it runs afoul of evolving standards of decency. They join Scalia's dissent to the notion that what other countries are doing (abolishing the death penalty) should hold any sway over the US Supreme Court.

It seems to me that the Journal has a point. I don't quite understand why a punishment that is acceptably usual and uncruel to adults is different for a 17-year old. The answer appears to be in the principle of evolving standards of decency - half-hanging, drawing and quartering may have been considered “decent” in the 17th century, but we'd consider it “cruel and unusual.” Scalia asks for clearer consensus on the issue before he accepts that executing 17-year olds falls beneath this standard - absent that, he accuses the Supreme Court majority of applying *their* (bleeding-heart pinko) standards to the issue.

According to Dahlia Lithwick, Scalia is upset at Kennedy for reasons that go beyond this particular case, though I'm sure he'd take offense that he's let his personal feelings affect the tone of his opinions.

It doesn't make much sense to me that Scalia gets so angry about this.

First, neither he nor anyone else has proposed a standard for what constitutes consensus. We'd say that slavery was indecent by an absolute standard today, but you'd be hard pressed to get a consensus on the issue in 1850.

Second, it should be a reasonable position to err on the side of leniency when it comes to capital punishment. Why risk being indecent on such a grave matter?

Third, even Scalia concedes that some age limit must apply. He says that *some* 16-18 year olds have enough maturity (though not the moral character and/or impulse control) to be held accountable as if they were adults for capital crimes. He points out that the same bleeding heart pinkos that want to ban executions of minors are okay with teenagers having abortions without their parents's consent. But he neglects to mention that 17 year olds can't marry, enlist in the military or even be trusted to vote. Yes, there is inconsistency, but as a society we're obviously willing to live with it.

I also want to take issue in Scalia's views that foreign impulses have no relevance in what the court decides.

First, that's a naïve statement. It's not as if Scalia's own perspectives aren't affected by events outside the US. He's a smart, educated man, and he at least knows the difference between different systens of jurisprudence.

Second, it's an astonishingly unnuanced view. Nobody is suggesting (as far as I know) that British case law can be used as precedence in American courts. But it would be foolish to ignore the experience of other states when confronting American problems. And there can be no question that American decency is affected (for good or bad) by outside influences.

I'll accept the issue is complex and probably deserved to get on the Suprme Court docket. But I can only imagine that Scalia et al would (rightly) be offended if a dissent to their views contained an ad hominem attack on their motivations.

Lighten up, Antonin. Sent wirelessly from my Blackberry.

Comments

[Mark Amerman]

It isn't the business of the U.S. Supreme Court to decide
whether or not 17 year olds should be executed. This is
the business of the U.S. Congress or even more appropriately
the state legislatures, all of whom are elected.

Supreme Court justices are not elected nor are they, except
theoretically, accountable. Supreme Court justices are
given enormous power but that power, according to the Constitution,
is limited to upholding the Constitution -- which for the
most part is about limiting the power of the federal and state
governments.

When the Supreme Court goes beyond its authority then it
creates a sort of tyranny; it certainly isn't democracy.

Or course there are many who do find democracy inconvenient
or who would like to do an end-run around it when it doesn't
give the "right" results. Expanding the accepted power
of judges is their standard ploy.

If one accepts that it is legitimate for the Supreme Court
to find executing 17 year olds unconstitutional -- a limitation
on the power of the states that is definitely not in the
Constitution -- then one should accept almost any ruling
of the court as legally valid: that is an arbitrary, vast,
unaccountable, and undemocratic power.

[Leif]

The Constitution explicitly bans punishment that is "cruel and unusual," and the interpretation rests on the Supreme Court. As I point out, I am not entirely convinced that the death penalty is any more cruel or unusual for one age or another, but the Supreme Court has long since decided that age is a factor.

[Mark Amerman]

Leif,

The relevant text is the eighth amendment to the Constitution, quote:

"Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted."

And what does that mean? Can't it be argued that capital punishment
at any age is a "cruel and unusual" punishment? Can't it be argued
that imprisonment itself is a "cruel and unusual" punishment?

The fact is the language is vague enough to allow all these
interpretations and many more. But we know this wasn't the intent of
the people who wrote this in the first place because, for example,
at the time and for many years afterword it was not uncommon for
these same people to execute people for stealing.

We do know that what "cruel and unusual" actually meant to the people
who wrote and voted for the eighth amendment. It meant things like
the following (which was a practice under english law):

"The penis and testicles were cut off and the stomach was slit open.
The intestines and heart were removed and burned before them. The
other organs were torn out and finally the head was cut off and
the body divided into four quarters. The head and quarters were
parboiled to prevent them rotting too quickly and then displayed
upon the city gates as a grim warning to all. At some point in this
agonising process the prisoner inevitably died of strangulation and/or
haemorrhage and/or shock and damage to vital organs."

We know what the original intent of the eighth amendment was. We may
not to the last decimal place, but it clearly didn't apply to executions,
seventeen years old or not.

So where does that leave us? If we ignore the original intent and
context the eighth amendment can be interpreted any way the Supreme
Court justices please.

But should they be doing that?

And what about the rest of the Constitution? Isn't it after all a
description of a democracy? Why in the world should the Supreme Court
be making this value judgement and denying the judgement of the elected
representatives of the people?

Shouldn't that be an action taken only in extremity?