More on the Recent Court Decision

ABA President Robert J. Grey Jr. hailed the ruling, which he called "truly a landmark decision."
"Society and the law have long recognized this with restrictions on such things as a juvenile's ability to vote or consume alcohol," he says. "Today, the court also recognizes that juveniles are different, and that those differences make the death penalty a cruel and unusual punishment for them." Gray comments regarding voting and other age restrictions are not analogous, because they are legislative issues, not judicial decrees.

Kennedy stated that "the overwhelming weight of international opinion against the juvenile death penalty." International opinion may influence public opinion and hence the legislatures, but it should not influence an interpretation of the law. What does foreign law or foreign opinion have to do with US law?

An additional point that makes this decision even more absurd: something like abortion is a relatively new issue as abortion didn't exist in 1790. However, the death penalty and the death penalty for juveniles did. So if "juveniles" received the death penalty back then, and the original framers had no objection then...then their intent was never to withhold the death penalty in such cases. So, if that people who wrote the document did not interpret capital punishment for "juveniles" as cruel and unusual in 1790, then it is not any more cruel or unusual today. Again, if there was a national consensus (as Kennedy claims) against a juvenille death penalty that the legislatures would made laws against it.

As usual, the dynamic duo, Scalia and Thomas are right on the money. "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," Scalia wrote. "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."

Unfortunately, Rehnquist will be eventually retiring, which means that Bush will need to replace a conservative with another conservative before he has a shot of replacing a liberal with a conservative. Due to the increase in public awareness of judicial activism, I think Bush will research more of a potential judge's ability to be an "orginialist." Kennedy was a Reagan appointee , Stevens was a Ford appointee, and Souter was a Papa Bush appointee. Although O'Connor dissented on this one, her leftward tilt in recent years is distressing. Of the 9 on the bench, 7 were appointed by Republicans, but only 3 are conservative.