Friday - March 18, 2005
The Supreme Court Gets ‘Borked’
Do you remember a judge named Robert H. Bork. Sure you do. His last name entered our vocabulary as a synonym for a process of allowing partisan politics to keep good men off the Supreme Court. Here’s a refresher course from his bio for those who slept through the 1980’s: In 1987, President Ronald Reagan nominated him for associate justice. While universally acknowledged as an accomplished scholar, lawyer and judge, his nomination became a battleground for American culture wars over the meaning of the Constitution. Then-Chief Justice Warren Burger said of Bork, “I do not think in more than 50 years since I was in law school that there has ever been a nomination of a man or woman any better qualified than Judge Bork.” The (Democratic-controlled) Senate ultimately voted against confirmation, and Bork’s failed nomination became a synonym for the infiltration of highly partisan ideological politics in the judicial selection process.
Judge Bork is currently a senior fellow at the Hudson Institute, professor at Ave Maria Law School, and visiting professor at the University of Richmond Law School. He has written an excellent editorial for The National Review (requires subscription) about the Supreme Court’s recent decision to prohibit the death penalty for those under the age of 18. In the process he raises some very interesting questions and takes Justice Kennedy to task for his “international guidelines” argument. Since not all of you subscribe to The National Review (what a shame), I am posting this excellent article here in its entirety. Here is an excerpt that makes an interesting point ....
Retribution was discounted on the theory that young killers, apparently without exception, are less culpable than presumably more thoughtful adult murderers. This from a Court that finds teenage girls sufficiently mature to decide on abortion without parental knowledge or consent?
Travesty Time, Again
In its death-penalty decision, the Supreme Court hits a new low
ROBERT H. BORK
There are plenty of reasons to deplore Roper v. Simmons, the Supreme Court’s decision that a murderer under the age of 18 when he committed his crime cannot be given the death penalty. The Court majority once more exhibited for all to see that dazzling combination of lawlessness and moral presumption which increasingly characterizes its Bill of Rights jurisprudence.
The opinion starts unpromisingly, informing us that by “protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” Readers may wonder about the dignity of the victim. Christopher Simmons, then 17, discussed with two companions his desire to murder someone, saying they could “get away with it” because they were minors. He and a juvenile confederate broke into the house of Shirley Crook, covered her eyes and mouth, and bound her hands with duct tape. They drove her to a state park, walked her onto a bridge, tied her hands and feet together with electrical wire, completely covered her whole face with duct tape, and threw her into the Meramec River, where, helpless, she drowned. Simmons bragged about the killing to friends, telling them he had killed a woman “because the bitch seen my face.” Arrested, he confessed, and was sentenced to death.
The Supreme Court, though conceding that retribution and deterrence are valid functions of the death penalty, intoned that “we have established the propriety and affirmed the necessity of referring to ‘the evolving standards of decency that mark the progress of a maturing society’ to determine which punishments are so disproportionate as to be cruel and unusual.” That means the justices’ views evolve, which is, by definition, progress. Justice Anthony Kennedy’s opinion attempted to mask this unpalatable reality by claiming that the meaning of the Eighth Amendment had changed owing to a new “national consensus” against executing under-18 killers. This assertion of a “national consensus,” however, was derived from the example of just 18 states that had faced the issue of granting an exemption to juvenile murderers out of the 38 with the death penalty. This dubious escalator means that the founders who allowed such punishments fall well short of our superior understanding of decency, as do the 20 states that today permit the execution of those younger than 18. In Simmons’s case, it took the Missouri legislature, the governor, a unanimous jury, and a judge to bring him to death row. All now stand branded, five to four, as morally indecent. The majority did not, and could not, explain why any state is forbidden to make a policy choice — denied its constitutional sovereignty — because other states disagree with it.
Trying its hand at psychology, the Roper majority argued that neither deterrence nor retribution supported the death penalty for killers under the age of 18. As for deterrence, the Court said, the likelihood that teenagers engage in cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually non-existent. This in a case where the murderer counted on his minority to “get away with it.” This from a Court that finds teenage girls sufficiently mature to decide on abortion without parental knowledge or consent. Retribution was discounted on the theory that young killers, apparently without exception, are less culpable than presumably more thoughtful adult murderers. The Court ignored the fact that juries, unlike the Court, do not decide such issues categorically but by evaluation of the individual and must take youth into account as one mitigating factor.
Retribution was also ruled out without considering its indispensable role in the criminal-justice system. The mixture of reprobation and expiation in retribution is sometimes required as a dramatic mark of our sense of great evil and to reinforce our respect for ourselves and the dignity of others. None of this was examined by the Court. Its steady piecemeal restriction of the death penalty — now “reserved for a narrow category of crimes and offenders” — suggests that the Court is on a path to abolish capital punishment altogether even though the Constitution four times explicitly assumes its legitimacy.
The most ominous aspect of Roper, however, is the Court majority’s reliance upon foreign decisions and unratified treaties. The opinion cited “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,” a fact the Court found “instructive” in interpreting the American Constitution. Since the nations of Europe have, among others, abolished the death penalty, the Court seems to be suggesting that we (or rather the justices) should do likewise. After all, “[w]e have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual.” If the meaning of a document over 200 years old can be affected by the current state of world opinion, James Madison and his colleagues labored in vain.
Article 37 of the United Nations Convention on the Rights of the Child, we are reminded, expressly prohibits capital punishment for those under 18. The United States — almost uniquely among countries — did not ratify it. Indeed, this country has never accepted any international covenant containing the prohibition in Article 37. “In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty.” To accept such covenants would, of course, be attempting to alter our Constitution by treaty. Perhaps that is why the Court hedged: “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” This “underscores the centrality of those same rights within our own heritage of freedom.” That comes pretty close to accepting foreign control of the American Constitution.
What is really alarming about Roper and other cases citing foreign law (six justices now engage in that practice) is that the Court, in tacit coordination with foreign courts, is moving toward a global bill of rights. Neither our courts nor the foreign courts are bound by actual constitutions. Prof. Lino Graglia was quite right when he said that “the first and most important thing to know about American constitutional law is that it has virtually nothing to do with the Constitution.” That is certainly the case with the Bill of Rights. From abortion to homosexual sodomy, from religion to political speech and pornography, from capital punishment to discrimination on the basis of race and sex, the Court is steadily remaking American political, social, and cultural life. As Justice Antonin Scalia once said in dissent, “Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize.”
The courts of the United Kingdom, Canada, Israel, and almost all Western countries are doing the same thing, replacing the meaning of their charters with their own preferences. Nor are these judicial alterations random. The culture war evident in the United States is being waged internationally, both within individual nations and in international institutions and tribunals. It is a war for dominance between two moral visions of the future. One is the liberal-elite preference for radical personal autonomy and the other is the general public’s desire for some greater degree of community and social authority. Elite views are fairly uniform across national boundaries, and since American and foreign judges belong to elites and respond to elite views, judge-made constitutions tend to converge. It hardly matters what particular constitutions say or were understood to mean by those who adopted them.
Judges are not, of course, the only forces for a new elite global morality. Governments and non-governmental organizations are actively promoting treaties, conventions, and new institutions (the International Criminal Court, for example) that embody their view that sovereignty and nation-states are outmoded and that we must move toward regional or even global governance. American self-government and sovereignty would be submerged in a web of international regulations. The Supreme Court, in decisions like Roper, adds constitutional law to the web. That is the one strand, given our current acceptance of judicial supremacy, that cannot be rejected democratically. What is clear is that foreign elites understand the importance of having the Supreme Court on their side, which is precisely why their human-rights organizations have begun filing amicus briefs urging our Supreme Court to adopt the foreign, elite view of the American Constitution.
Roper is one more reason that it is urgent that the president nominate and battle for justices who will rein in a Court run amok.
on 03/18/2005 at 03:03 AM
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