And one interesting commentary from a University of San Diego law professor, from today’s Wall Street Journal opinion section:
By ROBERT F. NAGEL
March 7, 2005; Page A18
The Supreme Court has struck down laws in 20 states that had permitted the death penalty for murderers who committed their crime while 17 years of age. This decision, Roper v. Simmons, was greeted with the usual stirrings of admiration and excitement on NPR and in other organs of respectable commentary. Predictably the adjective “landmark” was trotted out to describe the majority’s opinion and, just as predictably, “angry” to describe Justice Antonin Scalia’s dissent. How ordinary all this has become!
There is, first of all, the garish dissonance between the Court’s lofty concerns about justice and the miserable reality that actually gave rise to the case. Christopher Simmons, whose crime is the occasion for Justice Anthony Kennedy’s musings about “the dignity of all persons” and “the evolving standards of decency,” told people he wanted to commit a murder and enticed two friends into his plan for murder in part by assuring them that as juveniles they would “get away with it.” He then committed that murder by breaking into a home at 2 a.m., binding a woman with duct tape and electrical wire, and throwing her from a railroad bridge into the river below. All this is calmly recounted by the majority before it proceeds to ruminate – without irony – about the difficulties of deciding whether a juvenile offender is especially blameworthy.
This construction of an edifice of enlightened theorizing over a base of sordid facts is nothing new. Blas? disregard for brutality is apparent, for example, in cases establishing a right to partial birth abortion and invalidating efforts to protect the privacy of rape victims.
Virtually every other aspect of Roper is also now routine: the happy insistence that the meaning of the Constitution “evolves”; the confident assertion that the nature of this evolution is ultimately a matter for the Court’s “own independent judgment”; the reliance on elite opinion as expressed in social science research or international treaties; the distrust of popular decision-making institutions like juries; the departure from prior rulings (in this case, a decision rendered only 15 years earlier); the blithe willingness to settle under the mantle of legal principle such questions as “the age of maturity” – questions that are inherently unprincipled matters of degree; and the nationalization of issues once left to the states, along with the judicialization of policy decisions once thought to be legislative. All this is normal practice. It is the deeply confused and unsettling process that now substitutes for what at one time was conceived of as a set of fundamental, enduring principles that expressed the sovereign will of the people.
In one intriguing respect, however, Roper departs from the modern practice of judicial review. In a number of important cases, involving, for example, disputes about how best to protect religious freedom or the proper limits to the right to abortion, the Court has reacted with anger to efforts by Congress and the states to induce change in constitutional rulings. Disagreement, to put it mildly, is not appreciated. Indeed, some of the justices, including the author of the Roper opinion, have gone so far as to claim that continuing public debate about divisive issues that the Court has attempted to settle can threaten America’s dedication to the rule of law itself.
Oddly, however, in Roper, Justice Kennedy does not even mention that the Supreme Court of Missouri had refused to follow the U.S. Supreme Court’s earlier decision upholding the death penalty for 17-year-olds. Justice Kennedy’s opinion actually affirms that defiant state court decision. Justice Sandra Day O’Connor’s dissent charges that this tolerance will “invite frequent and disruptive” challenges to precedent. Justice Scalia goes further, suggesting that it will destroy stability in the legal system and produce “chaos.”
What can account for the Court’s uncharacteristic lack of concern about this challenge to its supreme authority? Justice Scalia notes that the majority’s “indulgent reaction” may be a natural consequence of its legal methodology. If, he argues, constitutional meaning is not fixed in a text but, instead, is a reflection of passing political sentiments, then “lower courts can look into that mirror as well as we can.” As arresting as this possibility is, it hardly explains why a justice like Anthony Kennedy would resent disagreement over, say, abortion rights, but not over one of the death penalty decisions. Both are unmoored from text and other conventional legal sources.
One possible explanation for the majority’s unconcern is that it does not see defiance by a court as being anarchic to the same degree as defiance by Congress or state legislatures. After all, even the sorts of unmoored legal judgments to which Justice Scalia refers are finally subject to review by the Supreme Court. This explanation assumes that the justices hold not only an optimistic view of the inclinations of lower court judges, but also a rather heroic view of their own capacities. That is, it assumes the justices are convinced that they have the intellectual tools to control any rare judicial defiance that might occur.
There is little doubt that Justice Kennedy, at least, harbors few doubts about the constraining force of the Court’s authority. While announcing a constitutional right to engage in homosexual sodomy – in Lawrence v. Texas, in 2003 – he invoked the breathtakingly broad principle that Americans have a right to those freedoms necessary to define their “concept of existence,” while confidently denying that this reasoning would necessarily end up creating a constitutional right to homosexual marriage. Shortly thereafter the Massachusetts Supreme Court relied on Justice Kennedy’s opinion to create a right to homosexual marriage.
What some members of the Court tend not to appreciate is that they are not in control of their material. The content of their opinions, once unleashed on the world, does not belong to them alone. Not only do other judges have a voice in the ultimate significance of this content, but even the justice who authors an opinion must later decide about its significance in a world altered by that opinion. Justice Kennedy may have to decide about the constitutionality of homosexual marriage at a time when it has become entrenched in Massachusetts and elsewhere in part as a consequence of his decision in the sodomy case.
The Roper case, then, helps us see that the normal practice of constitutional interpretation by the Supreme Court is itself anarchic. Routine decisions, as legalistic as they may seem on the surface, are caldrons of conflicting and uncontrollable possibilities. The justices, contented with their authority, believe they are maintaining order while they are, in fact, setting loose their own kind of chaos.
Mr. Nagel, visiting professor at the University of San Diego Law School, is author of “The Implosion of American Federalism” (Oxford, 2001).