Justice Scalia’s Dissent [Juvenile Killers]

FindLaw ^ | 3-01-05 | Justice Scalia

[OXENinFLA]

  Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.

In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "[t]he judiciary ... ha[s] neither FORCE nor WILL but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." Id., at 471. Bound down, indeed. 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.

[buffyt]

You make a GREAT point.

Gee you guys and gals are all so smart, that I find myself agreeing with all of you. I would make a terrible juror. Both sides sound logical. And I am a conservative. But today's news is a new story and it is really making me think.

[sanchmo]

bump for later reading

[RicocheT]

Souter got in as Bush I gave in to what amounted to an earlier version of the present judicial filibuster the Democrats are doing against Bush II.

Souter was sold as a moderate and he turned out to be a flaming liberal. This is why the present judicial log jam in the Senate Judiciary Committee has to be broken by Leader Frist & Co.

Bush II needs conservative lower court judges now so he can appoint one or two followers of the Constitution justices. No more moderates to leak our rights away. Any "kid" now on death row is there because he needs killing for what he did.

[BigSkyFreeper]

Let's drop out of the ether and set foot on reality. They'll just spend a lifetime behind bars. They just won't be executed.

[Mo1]

For the record .. I'm not a big fan on the death penalty .. though I will admit there are some cases that I say fry the SOB

But that opinion is due to my "personal" beliefs

With that all said my "personal" beliefs don't have a thing to do with what Our Constitution states

[Einigkeit_Recht_Freiheit]

As well they should have. Executing minors put us in a handful of rogue states.

Children's brains are different. They should be treated different. I beleive they are redeemable.

I will assume those of you who do not are atheists.

[Einigkeit_Recht_Freiheit]

So you think the right to execute minors calls for the nuclear option?

I mean abortion, sure. That is about a right to stop people from killing. But so that we call execute children? Come on, don't be a nut.

[Einigkeit_Recht_Freiheit]

"Let's drop out of the ether and set foot on reality. They'll just spend a lifetime behind bars. They just won't be executed."

It is worth a bump

[Mo1]

We don't go around executing all kids that commit crimes

So please don't assume we do

[MissouriConservative]

Some of the most brilliant statements I've ever seen.....

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

But the Court having pronounced that the Eighth Amendment is an ever-changing reflection of "the evolving standards of decency" of our society, it makes no sense for the Justices then to prescribe those standards rather than discern them from the practices of our people. On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?

We need not look far to find studies contradicting the Court's conclusions. As petitioner points out, the American Psychological Association (APA), which claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court. In its brief in Hodgson v. Minnesota, 497 U. S. 417 (1990), the APA found a "rich body of research" showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement.

That last one will, hopefully, be picked up by pro-life forces....the Supreme Court, whether it liked it or not, has now given ammunition to the pro-life groups. People under 18 do not have, now, the state of mind to decide whether or not they should have an abortion. This is truly a black day for those who wish to kill unborn children.

[iopscusa]

"Let's drop out of the ether...they'll just spend a lifetime behind bars...".
This may be your reality/opinion, but is not the opinion of the majority of the DP States. At issue is more then just the Juvie Death Penalty but the rights of the individual States within our system and the wrongs of the Supreme Crts in over ruling the State's laws.

[drt1]

Yes - I think Levin's' book hits on all the points re: The Courts confiscation of the role of defining and reinventing the Constitution.

This trend has been well underway, and accelerating, for the past 40 years, the defining of 'Special Rights', Denial of legal status to the unborn, infringement on the Legislative prerogatives re: Enacting law in the form of an Opinion, etc., etc. It will not be rolled back quickly, if ever.

[tame]

The Court thus proclaims itself sole arbiter of our Nation's moral standards...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.

Go nuclear, GOP!

[JCEccles]

Supreme Court, whether it liked it or not, has now given ammunition to the pro-life groups.

Sadly, I think you underestimate the creativity of the liberal majority on the Supreme Court. These five unelected lawyers decide what feels right to them first and only then craft a decision to make it work.

It is entirely possible for the Supreme Court to hold fast to two or more inherently contradictory positions at the same time.

[Mr. K]

Man I hope Scalia get made Chief Justice
and they re-nominate BORK

[Christian4Bush]

Parity, I know, I know, I'm not an English major or an old picky biddy looking for fault in language structure or hitting the "o" key rather than the "i" key. But I'm sure I could dig up some of your post and make fun of you too. Or are you perfect?

Methinks thou doth protest too much. /Shakespeare

[JCEccles]

Let's drop out of the ether and set foot on reality. They'll just spend a lifetime behind bars. They just won't be executed.

The reality is, some will and many won't.

Furthermore, some that will be released will go on to kill again.

[NCSteve]

I will assume those of you who do not are atheists.

Does that leave us free to assume you are an idiot?

If you think in this day and age that a 17-year-old is a child, you need to wake up, Pollyanna. In any case, the question of the death penalty has nothing to do with reform, redemption, or rehabilitation. It has to do with deterrence. It must be understood by all members of our society, whatever their age, that certain premeditated actions on their part will surely and swiftly result in the forfeiture of their lives. Furthermore, there is no better deterrence to individuals who have predilections in the direction of antisocial violence than to remove their sorry hides from the planet.

Our current moral and social predicament is a direct result of witless snivelers who somehow believe that order and discipline is too heavy a burden to bear. And, for your information, I am most certainly not an atheist. I have no love for the imposition of that ultimate cost on any other human. However, I cannot imagine living in a society where we have no recourse to remove these monsters from our midst.