Watching Scalia Eviscerate a Kennedy

Even his most ardent opponents are wont to acknowledge Justice Antonin Scalia's intellectual brilliance.  If you've never watched his devastating fire handily blasting the drunken jurisprudence of postmodernism, you owe yourself a read some evening.  It's an irreverence that arouses the highest form of wrath: that of a left that has been not only defied, but mocked.  His specialty is dismembering an opponent with his own weapon.  He does it calmly and with a deftness that immobilizes any liberal mind that has been dealt such a terrifying dose of simplicity.  Our $164,000 a year is buying us a lot.

Contrary to the popular belief perpetuated by members of my verbose profession, law is nowhere near as complicated as we and our invoices try to make it seem.  Have you ever attempted to read a long court decision and wondered what in the world they were trying to get at?  If you're lucky enough to find Justice Antonin Scalia in the minority—in which case the majority is unlucky enough to find him there, too, wielding a pen that drips with mercilessly stinging wit—you've got an easy job.  Just read the Scalia dissent, and you'll learn what the case is all about.  (Click here for a list of some Scalia dissents.)

Scalia's 16 pages of dissent to this week's Roper v. Simmons decision—the case where the Court declared by a 5—to—4 vote that States can't execute young murderers—is classic work.  In case you don't have time to read the full dissent, check out the highlights below.  All quotes are from the Scalia dissent unless otherwise noted, and internal citations are omitted.

* * *

The youngsters we're talking about have committed, in Scalia's words, 'truly monstrous acts.'  A couple examples:

 Defendant Christopher Simmons of this case, who was only seven months shy of his 18th birthday when he murdered Shirley Crook, described to his friends beforehand—in 'chilling, callous terms,' as the Kennedy majority opinion puts it—the murder he planned to commit.  He and his 15—year—old accomplice then broke into the home of an innocent woman in the middle of the night, forced her from bed, walked her to a trestle spanning a river, 'hog—tied' her with duct tape and electrical wire, and threw her off a bridge alive and conscious.  She drowned.

 In Alabama, two 17—year—olds, one 16—year—old, and one 19—year—old picked up a female hitchhiker, threw bottles at her, and kicked and stomped her for approximately 30 minutes until she died. They then sexually assaulted her lifeless body and, when they were finished, threw her body off a cliff. They later returned to the crime scene to mutilate her corpse.

To strike down the death penalty for such charmers, the Roper majority relied not on the original meaning of the Eighth Amendment—it simply prohibits cruel and unusual punishment—but on 'evolving standards of decency,' whatever they are.  The majority was unwilling to extinguish this person's 'potential to attain a mature understanding of his own humanity.'  In his dissent's introduction, Scalia marvels:

"What a mockery today's opinion makes of Hamilton's expectation [that the judiciary posed no risk to the republican lawmaking process], 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....

"[T]he 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.'  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."

As the pinnacle of the world's premier legal system, the institution of the United States Supreme Court deserves tremendous respect.  But its recent history is rife with an embarrassing torrent of self—contradiction.  Scalia is always faithful to point that out.  Only 15 years ago, the Court said that it is 'absurd to think that one must be mature enough to drive carefully, to drink responsibly, or to vote intelligently, in order to be mature enough to understand that murdering another human being is profoundly wrong, and to conform one's conduct to that most minimal of all civilized standards.'  But now, anyone under 18 (but over zero) cannot deserve death.  19 years after Roe v. Wade, an attempt to overrule that case was met by this sententious response: 'Liberty finds no refuge in a jurisprudence of doubt.'  But 17 years after Bowers v. Hardwick's affirmation that the Constitution doesn't create a fundamental right of sodomy, the Court was happy to toss that decision out for the Lawrence v. Texas petitioners.  Such abuse by the liberals has done the Court's reputation a great disservice.


1.  The Court has brushed us aside and turned to foreign courts for guidance.

The most insidious wrong of the Roper Court is its reliance on foreign regimes to help 'interpret' our own unique Constitution.  Lawrence v. Texas, the 2003 case where the Court struck down a Texas criminal sodomy statute (Scalia's dissent there is prophetic), is a notorious instance of this disturbing trend.  Justices Scalia and Breyer debated this troubling practice at a recent event broadcast by C—SPAN.  Scalia is right there when it happens in Roper: 'Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so—called international community take center stage.' 

This is extremely dangerous.  How are these foreign legal forays to be controlled?  Will it be Gallup or Zogby who does the foreign judicial opinion polls?  Will we need an international board to maintain a rolling average, headed up by some UN talent—perhaps an administrator from oil—for—food who's handy with numbers?  Even if we could come up with a sound methodology, nobody has told me what help it is to ask the Old World—the same batch that often has a hard time understanding the superiority of Judeo—Christian values, often can't recognize and win a major war, and has generally never approached our distinct blend of liberty, order, and opportunity—for help interpreting a Constitution that was written to avoid their style of sophisticated moral bankruptcy.

Foreigners don't have any business telling us how to interpret our Constituion.  They didn't come up with it, and they don't have to live with it.  A baseball ref might comment on a football game, but you'd never let him run one.  Whatever wonderful ideas many foreigners may have, they simply don't share our unique legal, political and social culture.  At best all they've got is a copy.  At worst they're in total opposition.  We are the New World, and ours is an unprecedented system proprietary to one land.  And in the 200—plus years that we've developed and maintained our single, distinctly superior form of government, most of the rest have revolved at a dizzying rate through a fantastic selection of new ones.

Scalia destroys Justice Kennedy's logic with Kennedy's own standard:  'The Court undertakes the majestic task of determining (and thereby prescribing) our Nation's current standards of decency. It is beyond comprehension why we should look, for that purpose, to a country that has developed, in the centuries since the Revolutionary War—and with increasing speed since the United Kingdom's recent submission to the jurisprudence of European courts dominated by continental jurists—a legal, political, and social culture quite different from our own.' 

This contradiction aside, 'the 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. In fact the Court itself does not believe it.'  The laws of most other countries differ from ours in many significant respects.  For example:
 
 Nobody else has the same First Amendment.  The Court ignores the views of other countries on whether it's ok to fund religious activities with state money.
 Few other countries have such a permissive view of abortion.  The Court's abortion jurisprudence makes us one of only six countries that allow abortion on demand up through viability.
 Many foreign countries have a mandatory death penalty for certain crimes—with no possibility of mitigation, for youth or any other reason.
 Even the foreign courts that have some semblance of the right to a jury trial and the protection against double jeopardy are trending away from those protections.
 The UN Convention on the Rights of the Child bans imprisonment without parole for young criminals.

Scalia demands a consistency that the Court professes but is unwilling to adopt:

"The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."

He closes out the point on foreign law with this attack:

"[T]he Court's statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our 'fidelity' to the Constitution, our 'pride in its origins,' and 'our own [American] heritage.' To the contrary, they are cited to set aside the centuries—old American practice—a practice still engaged in by a large majority of the relevant States—of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources 'affirm,' rather than repudiate, is the Justices' own notion of how the world ought to be, and their diktat that it shall be so henceforth in America."

2.  The Court has declared itself the supreme arbiter of the nation's moral values.

I seriously doubt that the many good people in juries, legislatures and neighborhoods across Middle America will take well to the Supreme Court's distrust.  They don't like it when a faraway judge ignores their values—especially when he has to look beyond our shores to find support for some already—questionable decision.  Neither do they subscribe to the new and exciting 'evolving standards of decency' that apparently issue regularly from somewhere inside our most highly—sophisticated metropolises.  They typically want criminals punished, and they wrote a Constitution whose purpose is to enshrine certain timeless values that our government and its judges are bound to follow.  The most longstanding principle of Judeo—Christian criminal justice is that murderers are to be executed because they have done a distinct evil that cries out for a single kind of closure.  As even the misguided majority noted in a fleeting reference, it has to do with simply "right[ing] the balance for the wrong."

While the black robe always deserves respect, those who wear it must bear in mind that they, too, are human.  Scalia issues the following reminder: '[b]y what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?'  'Today's opinion provides a perfect example of why judges are ill equipped to make the type of legislative judgments the Court insists on making here.'  '[A]ll the Court has done today...is to look over the heads of the crowd and pick out its friends.'

In excepting the human race in America from execution between the ages of zero and 18 only, Justice Kennedy unfortunately found himself relying on a variety of sociological studies for help undertaking 'the majestic task of determining (and thereby prescribing) our Nation's current standards of decency.'  These studies provide no end of fun.  The American Psychological Association (APA), for example—long notorious for its vigorous efforts to transform homosexuality's status from mental disorder into civil right—claimed in Roper that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions.  The APA, however, 'has previously taken precisely the opposite position before this very Court.'  In a 1990 brief, the APA found 'a 'rich body of research' showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement.'  It also argued that by age 14—15 they develop abilities similar to adults in reasoning about moral dilemmas, understanding social rules and laws, and reasoning about interpersonal relationships and problems.  Pleading for just a little consistency, Scalia points out to the apparently—oblivious majority that

'Whether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.' 

The only point the cited studies made is that some minors don't take moral responsibility for their actions—yet Justice Kennedy relied on them to manufacture a categorical ban on any execution, ever, of any underage murderer.  'Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes.'  And whatever the studies say, they surely 'in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way—by determining that some murders are not just the acts of happy—go—lucky teenagers, but heinous crimes deserving of death.'

The Court's freshly—manufactured jurisprudence also included the rather surprising decree that there is a 'nonexistent' chance that future young criminals will be deterred by having their colleagues executed—a contention that Scalia calls 'transparently false.'  'The Court unsurprisingly finds no support for this astounding proposition, save its own case law.' 

This is the reasoning of the same majority that admitted in the second paragraph of its opinion that defendant Simmons thought he could 'get away with it' because he was a minor.

The Court accommodated his assumption.

3.  The purported 'national consensus' against the death penalty for young murderers is a myth.

Not that it always matters when it comes to announcing a sweeping change to the nation's moral policy (see, e.g., Roe v. Wade), but the Roper Court did rely upon an alleged 'national consensus' in coming to its decision: 47% of State legislatures—in other words, less than half—prohibit the death penalty for juvenile murderers.  Only a few years ago at the Court, 42% of death penalty States was not a consensus, and 78% of the same was just barely a consensus.  Even at that, 12 States don't use the death penalty at all.  According to Scalia, the Supreme Court has never counted these States when deciding what the consensus is in a death penalty question.  Scalia responds:

"Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old—order Amishmen in a consumer—preference poll on the electric car. Of course they don't like it, but that sheds no light whatever on the point at issue."

In an earlier case, the fact that two legislatures had raised the threshold age for the death penalty wasn't enough for the Supreme Court to invalidate the questioned provision.  But

'now, the Court says a legislative change in four States is 'significant' enough to trigger a constitutional prohibition.  It is amazing to think that this subtle shift in numbers can take the issue entirely off the table for legislative debate.'

Scalia finishes his dissent by noting that the Court fails to admonish the Missouri Supreme Court for 'overruling' the Supreme Court's clear precedent.  It doesn't seem like a big deal since the U.S. Supreme Court had just agreed with Missouri's supreme court, but it's a simple fact that lower courts don't overrule higher ones. 

'However sound philosophically, this is no way to run a legal system....The result will be to crown arbitrariness with chaos.'

* * *

That's just a quick look at a few highlights from Scalia's dissent.  If you want to enjoy the full vigor that is Scalia in prime form, you need to read it for yourself.  The Justice's healthy inherent distrust of human nature, especially human nature that comes dressed in  a powerful black robe, is great salve for the originalist in agony at watching his beloved Constitution batted around like an old child's toy.  Thank God for judges like this.

Keep a sharp eye out for the Ten Commandments cases.  If too many Justices forget to look up and notice the tablets set in the fresco that's right above them, you know who'll be there with a dead—on dissent.

Christopher Schweickert is a lawyer in Northern California.

Even his most ardent opponents are wont to acknowledge Justice Antonin Scalia's intellectual brilliance.  If you've never watched his devastating fire handily blasting the drunken jurisprudence of postmodernism, you owe yourself a read some evening.  It's an irreverence that arouses the highest form of wrath: that of a left that has been not only defied, but mocked.  His specialty is dismembering an opponent with his own weapon.  He does it calmly and with a deftness that immobilizes any liberal mind that has been dealt such a terrifying dose of simplicity.  Our $164,000 a year is buying us a lot.

Contrary to the popular belief perpetuated by members of my verbose profession, law is nowhere near as complicated as we and our invoices try to make it seem.  Have you ever attempted to read a long court decision and wondered what in the world they were trying to get at?  If you're lucky enough to find Justice Antonin Scalia in the minority—in which case the majority is unlucky enough to find him there, too, wielding a pen that drips with mercilessly stinging wit—you've got an easy job.  Just read the Scalia dissent, and you'll learn what the case is all about.  (Click here for a list of some Scalia dissents.)

Scalia's 16 pages of dissent to this week's Roper v. Simmons decision—the case where the Court declared by a 5—to—4 vote that States can't execute young murderers—is classic work.  In case you don't have time to read the full dissent, check out the highlights below.  All quotes are from the Scalia dissent unless otherwise noted, and internal citations are omitted.

* * *

The youngsters we're talking about have committed, in Scalia's words, 'truly monstrous acts.'  A couple examples:

 Defendant Christopher Simmons of this case, who was only seven months shy of his 18th birthday when he murdered Shirley Crook, described to his friends beforehand—in 'chilling, callous terms,' as the Kennedy majority opinion puts it—the murder he planned to commit.  He and his 15—year—old accomplice then broke into the home of an innocent woman in the middle of the night, forced her from bed, walked her to a trestle spanning a river, 'hog—tied' her with duct tape and electrical wire, and threw her off a bridge alive and conscious.  She drowned.

 In Alabama, two 17—year—olds, one 16—year—old, and one 19—year—old picked up a female hitchhiker, threw bottles at her, and kicked and stomped her for approximately 30 minutes until she died. They then sexually assaulted her lifeless body and, when they were finished, threw her body off a cliff. They later returned to the crime scene to mutilate her corpse.

To strike down the death penalty for such charmers, the Roper majority relied not on the original meaning of the Eighth Amendment—it simply prohibits cruel and unusual punishment—but on 'evolving standards of decency,' whatever they are.  The majority was unwilling to extinguish this person's 'potential to attain a mature understanding of his own humanity.'  In his dissent's introduction, Scalia marvels:

"What a mockery today's opinion makes of Hamilton's expectation [that the judiciary posed no risk to the republican lawmaking process], 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....

"[T]he 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.'  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."

As the pinnacle of the world's premier legal system, the institution of the United States Supreme Court deserves tremendous respect.  But its recent history is rife with an embarrassing torrent of self—contradiction.  Scalia is always faithful to point that out.  Only 15 years ago, the Court said that it is 'absurd to think that one must be mature enough to drive carefully, to drink responsibly, or to vote intelligently, in order to be mature enough to understand that murdering another human being is profoundly wrong, and to conform one's conduct to that most minimal of all civilized standards.'  But now, anyone under 18 (but over zero) cannot deserve death.  19 years after Roe v. Wade, an attempt to overrule that case was met by this sententious response: 'Liberty finds no refuge in a jurisprudence of doubt.'  But 17 years after Bowers v. Hardwick's affirmation that the Constitution doesn't create a fundamental right of sodomy, the Court was happy to toss that decision out for the Lawrence v. Texas petitioners.  Such abuse by the liberals has done the Court's reputation a great disservice.


1.  The Court has brushed us aside and turned to foreign courts for guidance.

The most insidious wrong of the Roper Court is its reliance on foreign regimes to help 'interpret' our own unique Constitution.  Lawrence v. Texas, the 2003 case where the Court struck down a Texas criminal sodomy statute (Scalia's dissent there is prophetic), is a notorious instance of this disturbing trend.  Justices Scalia and Breyer debated this troubling practice at a recent event broadcast by C—SPAN.  Scalia is right there when it happens in Roper: 'Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so—called international community take center stage.' 

This is extremely dangerous.  How are these foreign legal forays to be controlled?  Will it be Gallup or Zogby who does the foreign judicial opinion polls?  Will we need an international board to maintain a rolling average, headed up by some UN talent—perhaps an administrator from oil—for—food who's handy with numbers?  Even if we could come up with a sound methodology, nobody has told me what help it is to ask the Old World—the same batch that often has a hard time understanding the superiority of Judeo—Christian values, often can't recognize and win a major war, and has generally never approached our distinct blend of liberty, order, and opportunity—for help interpreting a Constitution that was written to avoid their style of sophisticated moral bankruptcy.

Foreigners don't have any business telling us how to interpret our Constituion.  They didn't come up with it, and they don't have to live with it.  A baseball ref might comment on a football game, but you'd never let him run one.  Whatever wonderful ideas many foreigners may have, they simply don't share our unique legal, political and social culture.  At best all they've got is a copy.  At worst they're in total opposition.  We are the New World, and ours is an unprecedented system proprietary to one land.  And in the 200—plus years that we've developed and maintained our single, distinctly superior form of government, most of the rest have revolved at a dizzying rate through a fantastic selection of new ones.

Scalia destroys Justice Kennedy's logic with Kennedy's own standard:  'The Court undertakes the majestic task of determining (and thereby prescribing) our Nation's current standards of decency. It is beyond comprehension why we should look, for that purpose, to a country that has developed, in the centuries since the Revolutionary War—and with increasing speed since the United Kingdom's recent submission to the jurisprudence of European courts dominated by continental jurists—a legal, political, and social culture quite different from our own.' 

This contradiction aside, 'the 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. In fact the Court itself does not believe it.'  The laws of most other countries differ from ours in many significant respects.  For example:
 
 Nobody else has the same First Amendment.  The Court ignores the views of other countries on whether it's ok to fund religious activities with state money.
 Few other countries have such a permissive view of abortion.  The Court's abortion jurisprudence makes us one of only six countries that allow abortion on demand up through viability.
 Many foreign countries have a mandatory death penalty for certain crimes—with no possibility of mitigation, for youth or any other reason.
 Even the foreign courts that have some semblance of the right to a jury trial and the protection against double jeopardy are trending away from those protections.
 The UN Convention on the Rights of the Child bans imprisonment without parole for young criminals.

Scalia demands a consistency that the Court professes but is unwilling to adopt:

"The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."

He closes out the point on foreign law with this attack:

"[T]he Court's statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our 'fidelity' to the Constitution, our 'pride in its origins,' and 'our own [American] heritage.' To the contrary, they are cited to set aside the centuries—old American practice—a practice still engaged in by a large majority of the relevant States—of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources 'affirm,' rather than repudiate, is the Justices' own notion of how the world ought to be, and their diktat that it shall be so henceforth in America."

2.  The Court has declared itself the supreme arbiter of the nation's moral values.

I seriously doubt that the many good people in juries, legislatures and neighborhoods across Middle America will take well to the Supreme Court's distrust.  They don't like it when a faraway judge ignores their values—especially when he has to look beyond our shores to find support for some already—questionable decision.  Neither do they subscribe to the new and exciting 'evolving standards of decency' that apparently issue regularly from somewhere inside our most highly—sophisticated metropolises.  They typically want criminals punished, and they wrote a Constitution whose purpose is to enshrine certain timeless values that our government and its judges are bound to follow.  The most longstanding principle of Judeo—Christian criminal justice is that murderers are to be executed because they have done a distinct evil that cries out for a single kind of closure.  As even the misguided majority noted in a fleeting reference, it has to do with simply "right[ing] the balance for the wrong."

While the black robe always deserves respect, those who wear it must bear in mind that they, too, are human.  Scalia issues the following reminder: '[b]y what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?'  'Today's opinion provides a perfect example of why judges are ill equipped to make the type of legislative judgments the Court insists on making here.'  '[A]ll the Court has done today...is to look over the heads of the crowd and pick out its friends.'

In excepting the human race in America from execution between the ages of zero and 18 only, Justice Kennedy unfortunately found himself relying on a variety of sociological studies for help undertaking 'the majestic task of determining (and thereby prescribing) our Nation's current standards of decency.'  These studies provide no end of fun.  The American Psychological Association (APA), for example—long notorious for its vigorous efforts to transform homosexuality's status from mental disorder into civil right—claimed in Roper that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions.  The APA, however, 'has previously taken precisely the opposite position before this very Court.'  In a 1990 brief, the APA found 'a 'rich body of research' showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement.'  It also argued that by age 14—15 they develop abilities similar to adults in reasoning about moral dilemmas, understanding social rules and laws, and reasoning about interpersonal relationships and problems.  Pleading for just a little consistency, Scalia points out to the apparently—oblivious majority that

'Whether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.' 

The only point the cited studies made is that some minors don't take moral responsibility for their actions—yet Justice Kennedy relied on them to manufacture a categorical ban on any execution, ever, of any underage murderer.  'Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes.'  And whatever the studies say, they surely 'in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way—by determining that some murders are not just the acts of happy—go—lucky teenagers, but heinous crimes deserving of death.'

The Court's freshly—manufactured jurisprudence also included the rather surprising decree that there is a 'nonexistent' chance that future young criminals will be deterred by having their colleagues executed—a contention that Scalia calls 'transparently false.'  'The Court unsurprisingly finds no support for this astounding proposition, save its own case law.' 

This is the reasoning of the same majority that admitted in the second paragraph of its opinion that defendant Simmons thought he could 'get away with it' because he was a minor.

The Court accommodated his assumption.

3.  The purported 'national consensus' against the death penalty for young murderers is a myth.

Not that it always matters when it comes to announcing a sweeping change to the nation's moral policy (see, e.g., Roe v. Wade), but the Roper Court did rely upon an alleged 'national consensus' in coming to its decision: 47% of State legislatures—in other words, less than half—prohibit the death penalty for juvenile murderers.  Only a few years ago at the Court, 42% of death penalty States was not a consensus, and 78% of the same was just barely a consensus.  Even at that, 12 States don't use the death penalty at all.  According to Scalia, the Supreme Court has never counted these States when deciding what the consensus is in a death penalty question.  Scalia responds:

"Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old—order Amishmen in a consumer—preference poll on the electric car. Of course they don't like it, but that sheds no light whatever on the point at issue."

In an earlier case, the fact that two legislatures had raised the threshold age for the death penalty wasn't enough for the Supreme Court to invalidate the questioned provision.  But

'now, the Court says a legislative change in four States is 'significant' enough to trigger a constitutional prohibition.  It is amazing to think that this subtle shift in numbers can take the issue entirely off the table for legislative debate.'

Scalia finishes his dissent by noting that the Court fails to admonish the Missouri Supreme Court for 'overruling' the Supreme Court's clear precedent.  It doesn't seem like a big deal since the U.S. Supreme Court had just agreed with Missouri's supreme court, but it's a simple fact that lower courts don't overrule higher ones. 

'However sound philosophically, this is no way to run a legal system....The result will be to crown arbitrariness with chaos.'

* * *

That's just a quick look at a few highlights from Scalia's dissent.  If you want to enjoy the full vigor that is Scalia in prime form, you need to read it for yourself.  The Justice's healthy inherent distrust of human nature, especially human nature that comes dressed in  a powerful black robe, is great salve for the originalist in agony at watching his beloved Constitution batted around like an old child's toy.  Thank God for judges like this.

Keep a sharp eye out for the Ten Commandments cases.  If too many Justices forget to look up and notice the tablets set in the fresco that's right above them, you know who'll be there with a dead—on dissent.

Christopher Schweickert is a lawyer in Northern California.