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March 02, 2005

Abandoning Judicial Restaint

I most likely will not have much to say over the next few days. I've been having a hard time summoning enthusiasm lately for much of anything. Although one can easily disagree with the practice of capital punishment, especially when it comes to the execution of minors, the reasoning behind the recent decision in Roper v. Simmons is hard to defend.

Alexander Hamilton must be turning over in his grave.

In a withering dissent to Roper v. Simmons, Antonin Scalia paints a chilling view of a court that has rejected any suggestion of judicial restraint:

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." ...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." 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 arbitrarily and capriciously finds in the presence of 18 state laws a "national consensus". This is (even for this Court) an astonishingly creative use of mathematics. The majority, led by Justice Kennedy, has cast off not only the notion of judicial restraint but also those outdated and confining laws of statistics. Indeed, we must all feel vastly encouraged to be instructed by the Court that 47% comprises anything close to a majority, much less a "national consensus". Who knew it was so easy to reach agreement in this contentious age?

But that is not the end of the Court's creative reasoning.

But a short time ago in Lawrence v. TX, the court essentially reasoned that the Texas legislature could not justify banning sodomy simply because the majority of citizens considered the practice "immoral". Now the court finds no contradiction in overturning the laws of 19 state legislatures based on the moral reasoning of a less-than-overwhelming number of citizens who happen to agree with 5 Justices.

Oh... and if that isn't enough to convince you, international opinion is on their side. Justice Scalia had a few choice words about that, too:

Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus.

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.

The Court begins by noting 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." The Court also discusses the International Covenant on Civil and Political Rights which the Senate ratified only subject to a reservation that reads:

"The United States reserves the right, subject to its Constitutional restraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crime committed by persons below eighteen years of age." Senate Committee on Foreign Relations, International Covenant on Civil and Political Rights, S. Exec. Rep. No. 102-23, (1992).

Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position. That the Senate and the President--those actors our Constitution empowers to enter into treaties, see Art. II, §2--have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces.

In other words, the very documents the majority cites to support this "international consensus on cruel and unusual punishment" have been specifically rejected by the United States Senate as recently as 1992.

So the majority defies and disregards not only the Constitution and our state legislatures, but Congress as well. And it's not as though the Court has slavishly followed international example in the past, as Scalia is quick to point out:

The Court has been oblivious to the views of other countries when deciding how to interpret our Constitution's requirement that "Congress shall make no law respecting an establishment of religion...

Justice Scalia goes on to observe with devastating accuracy that the Netherlands, Germany, and Australia allow the government to fund religious schools on the theory that this preserves neutrality and freedom of religion, and the UK allows teaching of religion in state schools. He reminds his colleagues:

...let us not forget the Court's abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability.

By this argument, there is a clear international consensus that Roe v. Wade is murder and should be overturned immediately. But that would require both a consistency and a humility I'm not sure the current Court possesses.

Posted by Cassandra at March 2, 2005 04:14 PM

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It's time go all Andrew Jackson on the Supreme Court and respond to their "Judicial Restraint" with "Excecutive Unwillingness".

Posted by: Grumpy at March 2, 2005 06:56 PM

Hear hear. Brilliant Cass.

Posted by: Cricket at March 2, 2005 09:44 PM

One more thing: Thanks again for making your wit and wisdom and insight available. Again, I believe blogs are more than free speech. Without them, I believe America would lose its moral compass. With them, we will get back on track. And you are a very important blogger (to me) because of the care and attention you take to research and think.

Posted by: Cricket at March 2, 2005 09:49 PM

Cricket, I can't believe you show up and allow me to bore you to tears with my senseless blather. Even though I do write for myself, I would get so discouraged if no one showed up and gave any feedback on what I wrote - it would seem pointless.

Most of the time I'm just trying to work out what I think, and I learn so much from reading your comments after I post something. Often you all think of aspects that never occurred to me.

I was talking to the Unit the other night about possibly quitting or turning off the comments, but he and I both agreed that aside from the writing, what I love about this is the discussion. If that went away, this would be no fun at all.

Posted by: Cassandra at March 2, 2005 10:23 PM

What was it that James Lileks said to Glenn Reynolds? Something about not being a public utility?

Take some time for a breather if you need it, Cass! We suffered when Jet Noise stopped - we'll wait until you get your sails full again!

Posted by: MathMom at March 2, 2005 10:41 PM

An absolutely excellent read, Cass. One of the most clear, concise, yet informative I've seen.

Posted by: Dan [TypeKey Profile Page] at March 2, 2005 10:50 PM

Yeah, take off a couple of days. We can go to the Castle and play if we get bored. Besides, with Pile waiting to be a new dad, he is gonna be wasted for a while. spd is doing who knows what and KJ is throwing snowballs at Brigham Young's statue or at the eagle at the Eagle's Gate intersection.

Mathmom, are things going all right for you? You have been on my mind lately...nice to see you.

Go on girl, you have EARNED IT. And no fair peeking either. Just work til Friday and NO BLOGGING until you feel like it.

Posted by: Cricket at March 2, 2005 10:52 PM

I'm sorry. I didn't realize I was whining - I was up all last night and will be up all tonight working. I'm just beat. Just ignore me.

And thanks for the kind words. I'm an idiot sometimes.

Posted by: Cassandra at March 2, 2005 10:58 PM

"I'm an idiot sometimes."

Quit braggin,' gurl. I've got fortysome years of consistent idiocy and there's little I hate more than a part time idiot. Hell, I'd probably be dead by now if I wasn't such a damned fool.

Maybe noone is born stoopid - but there ARE some of us who prefer it as an alternative lifestyle. :p If I could find a way to get stoopid benefits, I'd be set for life.

Posted by: Dan at March 3, 2005 12:32 AM

Another great post, Cass. Unfortunately, you split this one topic into two excellent threads, and I chimed in on the first one before I saw this one. Since I hate being repetitive, and thus a bore, my take on this topic is one thread back.

Get some rest. If you keep pushing yourself with no sleep, you'll only get yourself sick.

Posted by: a former european at March 3, 2005 01:46 AM

afe, if there's one thing you never are, it's a bore.

I always enjoy your comments. You are a joy to read, and a welcome relief from analyzing software data :)

Posted by: Cassandra at March 3, 2005 01:51 AM

Oh crap - I left a word out in my post - I hate it when I do that. I have GOT to get better glasses... THE Netherlands... Duh.

Posted by: Cassandra at March 3, 2005 01:54 AM

It's so hard to proof when you're typing in the snarky little window they give you and then I'm always too rushed once I'm done with the post to check it over properly.


Posted by: Cassandra at March 3, 2005 01:56 AM

Great post Cass, that is if words still have any meaning.

With the current state of judicial nominees it is interesting to note that Justice Kennedy is a Reagan appointee. It would be nice to have that one back.

Oh and Cass, you are not going anywhere. I won't stand for it. So make whatever changes you need to in the other areas of you life to accommodate. :)

Posted by: Pile On® at March 3, 2005 03:17 AM

Cricket -

Thanks for asking - we're doing hospitals again. Fourth time since September - if we make it through today's test, it's the last thing MathMan has to do to be on the heart transplant list.

Life gets weird.

Posted by: MathMom at March 3, 2005 06:32 AM

MathMom, we'll keep you in our prayers. We had some good news last week. My nephew had been told his cancer was coming back. We were really scared, as they weren't going to consider a second course of chemo since he'd never officially gone into remission.

He just came up to Johns Hopkins for a 2nd opinion and they couldn't find a trace of the leukocytes they'd seen earlier in his bone marrow. We're keeping our fingers crossed. That young man is something else - having him in the house was really something special.

He takes it all in stride with a grace that would do credit to someone far older and more experienced.

Last week everyone was just about at the end of their rope, but miracles can happen when all seems darkest. Hang in there - you're an amazing lady.

Posted by: Cassandra at March 3, 2005 07:12 AM

Thanks, Cass -

I read recently that miracles can't happen happen until things are truly hopeless. That's what makes them miracles. I'd say were are now primed for one.

My best wishes for your nephew. Cancer is scary stuff, and takes fortitude to stare it down. Has he read about FlorEssence Tea? There are many people alive because of it.

Posted by: MathMom at March 3, 2005 07:27 AM

I'll pass it on. He was brought pretty low in August after his last round of chemo - it was pretty bad. He's an amazing kid - not really a kid anymore.

A young man. A fine young man - I wish his granddad (the Unit's father) was alive to see him. He would be so proud.

Posted by: Cassandra at March 3, 2005 07:33 AM

We had a holistic macrobiotic dentist in WA state. He would give me a prescription for Essiac or the FlorEssence to give to Jonathan (he had a VSD) before getting his teeth cleaned.

My parents and brother have used it in keeping their cancers in check after the FDA shut down all the Laetrile websites. Amazing stuff.

Cass, this is the week for miracles and good things to happen. I will keep Mathmom and Mathman and your nephew in my prayers.

You weren't whining.

Posted by: Cricket at March 3, 2005 07:48 AM

Nicely said, Cass.
Scalia has never been more on target...or overwrought...in his dissent.
See you on the beach.

Posted by: spd rdr at March 3, 2005 07:52 AM

Spd Rdr!

He's Baaaaaaaaack!


Mathmom, I think about you and Mathman (funny how that works?).
Our hopes and prayers are with you.
And Cass, your nephew also.

Vaya con Dios.
vaya con Dios.

Posted by: Don Brouhaha at March 3, 2005 09:07 AM

Spd is at the beach?

Party at spd's!!!!!

We love ya Cass. Take a vacation (even if only a mental one) we'll be here when you get back.

Posted by: Masked Menace© at March 3, 2005 09:46 AM

SCOTUS is so far afield from the Constitution now, maybe the left has a valid point about not wanting to totally trust them to pick apart provisions of the Patriot Act for their Constitutionality.

What is the international precedent on violating individual rights, as established in, say, the Sudan?

Posted by: Ciggy at March 3, 2005 09:59 AM

Cass - I didn't get to read your good items here until this morning, so I'm trying to paddle fast and catch up...
First - I really appreciate your insight and analysis, as always - Great stuff!
Second - I'm glad you have the comments, because the discourse here is some of my favorite reading.
Third - Take a break if you need it - put the skip back in your step through whatever means works best for you. We'll keep watch, and will be here for you anytime.

Not that I have any independent readers to speak of yet - but I posted today and linked to you :-)

Posted by: Barb at March 3, 2005 11:49 AM

We need a Judicial Restraint Amendment to the Constitution. We need to give the president the power to refer Supreme Court decisions back to Congress, and give Congress the power to overturn SCOTUS decisions with a 3/5ths vote. Similar amendments should be adopted by each state. Judicial tyranny must end.

Posted by: V the J at March 3, 2005 12:17 PM


Your first Roper thread was good, and, like afe, I said my piece there. But this one is really good. Your concise, cogent analysis of Justice Scalia's dissenting opinion proves that, after bin Laden, Zarqawi, and that ilk, The Mudville Nine constitute the greatest present danger to the republican form of government established in the Constitution. You hit it outa the park. Brava!

I, ahem, concur with the sentiments of many other onsite posters--shut down the computer, get some rest away from the screen, recharge, and then come out smokin'! Everyone understands the need, and no one begrudges you the time off.

Posted by: The Great Santini at March 3, 2005 12:45 PM

Aw, if Cass steps away from the 'puter all she'll do is waste time getting all touchy/feely with Da Unit. Romance and recharging can only take you so far! ;-)

'Sides, as I struggle through the day sometimes the only thing that keeps me going is the thought of the multitude of Blog Princesses out there just blogging away in some kinda' teddy/Victoria Secret thing. Keep the fantasy alive! :-o

I really need a life! No scruples here! :-)

Posted by: JarheadDad at March 3, 2005 01:34 PM

JHD, you may continue to imagine me computing away in a state of deshabille, as the Unit keeps turning up the thermostat as penance for my overuse of my wireless connection.

I couldn't figure out why the man who for 25 years has always kept our home 5 degrees above arctic temperature was suddenly turning up the rheostat to the point where even I was shedding clothing until I happened to look over at him and saw that evil grin...smack!...

Posted by: Cassandra at March 3, 2005 04:50 PM

Santini, thanks :)

Barb, I do read you. I'm not good about reading anyone often due to lack of time but am going to make more of an effort. And will try to comment from time to time :) Thanks for the kind words - they mean more than you will ever know. John's friends speak well for him - I'm proud to call him a friend and happy to know you all now too.

MathMom, spd, Menace, Don, afe, Pile, Cricket: old friends are the best friends. You guys are the reason I do this. Thanks for the good times and all the wonderful memories. Just thinking about you makes me smile :)

Dan, I'll just have to email you. After I have a drink :)

Posted by: Cassandra at March 3, 2005 05:02 PM

JHD - I'm afraid all of our scruples are running around at the Castle!

Cass - For a smart Blog Princess, you took a while to realize what the Unit was up to, didn't ya! And thanks for reading - I so totally understand about the time thing. My work keeps interfering with my blog time :-)

Posted by: Barb at March 3, 2005 06:24 PM


Great post. Nicely excerted and reasoned. I had only heard in a blurb that the Court had so ruled. I wasn't surprised, but I knew I disagreed with the decision. Having now read some of it and the dissent, I am very sad with the reasoning.

The worst thing about Kennedy is he is sometimes a solid conservative in close cases, e.g., some property rights and federalism cases. The other times, he is just plain out there. He is still better than Bush appointee Souter, but that is a pretty modest standard of comparison.

Posted by: KJ [from a hotel business center in SLC, Utah] at March 3, 2005 09:32 PM

Yeah Cass. Go on that cattle drive and get your smile back. hehehehehehe.

Posted by: Cricket at March 4, 2005 08:19 AM

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