Supreme Arrogance: In One of Its Rulings, the Supreme Court Has Once Again Stepped beyond Its Legal Bounds, Ending Capital Punishment for People under 18 Years Old. Adding Insult to Injury, the Court Explicitly Cited Foreign Sources in the Main Text of Its Decision

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Supreme Court Associate Justice Antonin Scalia is known for using some acerbic terms in his opinions, but his dissent in the 5-4 decision Roper v. Simmons, which purported to declare that the death penalty for anyone under 18 years of age is "unconstitutional," took the cake. In the course of saying that the majority opinion had "no foundation in law or reason," Scalia used terms such as "mockery," "usurpation," "diktat," and "sophistry." For the usually reserved language in court decisions, this was the Supreme Court equivalent of Scalia throwing his chair at the other justices.

What caused such a furor? At the bottom of the majority decision in Roper v. Simmons was the claim that the execution of anyone who had not reached his 18th birthday constituted "cruel and unusual punishment" under the Eighth Amendment to the U.S. Constitution (as "incorporated" on the states by the 14th Amendment). Though the court had explicitly ruled in the 1989 case Stanford v. Kentucky that the execution of 16- and 17-year-olds was not "cruel and unusual punishment," the five majority justices arrived at the opposite conclusion on the basis of examining social data from across the United States and throughout the world and supposedly finding a "consensus" of opinion in what they called "evolving standards of decency that mark me progress of a maturing society." "This data gives us essential instruction," the majority opinion claimed. "We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate penalty for juveniles."

In opposition, Scalia noted that the traditional view of the Anglo-American common law system was that "the concept of 'law' ordinarily signifies that particular words have a fixed meaning. Such law does not change...." The majority's reliance on dubious opinion surveys--in contravention of the clear language of the Eighth Amendment and laws enacted by popularly elected state legislatures--means that the words in the Eighth Amendment no longer have any meaning beyond the backdrop of a contrived "consensus" asserted by a majority of justices. "Since [the majority of the Supreme Court Justices] are not looking at the same text, but at a different scene," Scalia explained, "why should our earlier decision control their judgment?"

International "Confirmation"

Of particular concern to constitutionalists is the majority's increasing reliance on international opinion for its own decisions. "Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty," the majority found, calling "the laws of other countries and ... international authorities ... instructive for its interpretation of the Eighth Amendment's prohibition of 'cruel and unusual punishments.'" Though the court referenced international opinion and international treaties as authorities in footnotes of past decisions (such as the 1988 Thompson v. Oklahoma and the 2002 Atkins v: Virginia), Simmons is the first case where the Supreme Court explicitly cited international agreements in the main text of the decision itself.

The court noted that "Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18."

Even some liberals are aghast at the court's ruling. Boston Globe columnist Thomas Oliphant, an opponent of the death penalty, wrote on March 3 that the "implication, however, is troubling--that basic principles in our law are affected by recent decisions in Congo, China, Nigeria, Yemen, Saudi Arabia, Pakistan and Iran. …