March 01, 2005

Roper Dissents

by PG

They're about what you'd expect. O'Connor politely argues on the majority's own turf, disputing whether there is a genuine and consistent trend among the states to disfavor capital punishment for crimes committed before 18, and seeing an insufficient shift since the Court affirmed the constitutionality of the juvenile death penalty in 1989's Stanford v. Kentucky. "I disagree with Justice Scalia's contention, post, at 15–22 (dissenting opinion), that foreign and international law have no place in our Eighth Amendment jurisprudence."

Scalia, joined by Rehnquist and Thomas, smacks the majority:

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.” Id., at 471. 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 reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to “the evolving standards of decency,” ante, at 6 (internal quotation marks omitted), of our national society. [...]
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.
Let it be noted, however, that Scalia grudgingly admits "our modern (though in my view mistaken) jurisprudence" takes into consideration what the national consensus is; like O'Connor, he then rips the majority for seeing such a consensus.

My personal favorite part of Scalia's dissent, however, has to be near the end when he points out that the Court doesn't look to other nations in its jurisprudence regarding the right to trial by jury, the exclusionary rule, the right to abortion or the separation of church and state. Then it's time to whack O'Connor for using foreign courts as a metric of reasonableness.

March 1, 2005 01:18 PM | TrackBack

Glad to see the site is back up and running.

Posted by: JMoore at March 1, 2005 02:36 PM

At least based on your quote, this is actually one of the worse Scalia opinions I've encountered. It doesn't sound like the majority is saying that the previous decision on the death penalty was wrong or that the meaning of the Constitution has changed, but rather the standards for what we consider "cruel and unusual punishment" has changed.

Suppose that rather than setting the minimum amount for a jury trial at $20, it was set at the price of 100 lbs of wheat. In 1990, the SCOTUS might say that a plaintiff was entitled to a jury trial when the amount in controversy was $50, and then in 2005 the SCOTUS might say that the amount in controversy must be at least $75 for a plaintiff to have a right to a jury trial. Would this mean that the SCOTUS was saying their previous decision was wrong or that the Constitution had changed over the previous 15 years? No, it would just mean that the price of wheat had gone up between 1990 and 2005.

Now the question of what constitutes "cruel and unusual punishment" is certainly a more subjective question than the price of wheat, but that doesn’t mean views on what violates this standard don’t change or that the Constitution can’t be interpreted to have this be a floating standard.

There are certainly some questions as to whether the SCOTUS is in the best position to decide what the general view on what constitutes “cruel and unusual punishment,” but that is another debate.

Posted by: Crackmonkeyjr at March 1, 2005 04:05 PM

I reply.

Posted by: Will Baude at March 2, 2005 12:02 PM

On a Scalia of 1 - 10, this dissent was an absolute zero.

Posted by: Shag from Brookline at March 2, 2005 04:57 PM
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