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.

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." As Oliphant says: "[T]he new standard is that the state can kill you for something you did after your 18th birthday, but you live if you committed a heinous murder at 17 years, 11 months, 29 days. I'm just one person but I don't recall that much changing in that interval."

Scalia denounced the court's internationalist perspective: "[T]he basic premise of the Court's argument--that American law should conform to the laws of the rest of the world--ought to be rejected out of hand." He stressed in his dissent the court's hypocrisy in its reliance on foreign sources for its decision. "In fact the court itself does not believe it," Scalia charged, pointing out that the court insists upon a much more strict "separation of church and state" (a phrase not found in the Constitution) than the rest of the world. He also cited "the Court's abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability." And he noted that if the court wants to get in line with an international "consensus" on cruel and unusual punishment, then the court didn't go far enough: "[I]n addition to barring the execution of under-18 offenders, the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release. If we are truly going to get in line with the international community, the Court's reassurance that the death penalty is not really needed ... gives little comfort."

Scalia noted that the Roper v. Simmons decision is evidence that the court rules on the basis of nothing more than "a show of hands on the justices' current personal views." But the court does not want to advertise this power grab, and so it finds what it can--including foreign laws--to support its decisions. "To invoke alien law when it agrees with one's own thinking, and ignore it otherwise," Scalia concludes, "is not reasoned decisionmaking, but sophistry."

Another important constitutional principle, overlooked even by "conservative" justices such as Scalia, is that the 14th Amendment does not empower the Supreme Court to decide if state capital punishment laws are in conformity with the Eighth Amendment. The 14th Amendment states in part: "No State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Supreme Court has found in this wording an "incorporation doctrine," incorporating into the 14th Amendment restrictions on state actions, the Eighth Amendment as well as other parts of the Bill of Rights. On this basis, the Supreme Court claims that it can rule on state laws that properly should not be decided on the federal level, including, in Roper v. Simmons, state capital punishment laws.

Of course, the intent of the post-Civil War 14th Amendment was to ensure that the states would not be able to punish anyone without a trial and that everyone, including the former slaves, would enjoy "the equal protection of the laws." Moreover, Congress, not the Supreme Court, was empowered to enforce the 14th Amendment. As the amendment states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

Fortunately, Congress still possesses the means to halt federal judicial activism. Congress can limit the appellate jurisdiction of the Supreme Court to hear certain kinds of cases, such as capital punishment cases. Congress can also limit the jurisdictions of, and even abolish if it chooses, all lower federal courts. Finally, Congress can impeach rogue justices who routinely ignore constitutional restraints. Congress desperately needs to give serious consideration to a combination of these remedies for judicial activism.