Kennedy had joined Scalia in 1989 in "emphatically rejecting" the suggestion that the court could apply its "own informed judgment" to the question of whether death is too harsh a punishment for any juvenile crime. Last week, he wrote that that part of Stanford had been "inconsistent with prior . . . decisions."
And, although he had joined Scalia in 1989 in "rejecting the contention . . . that the sentencing practices of other countries are relevant," this time Kennedy wrote that "it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty."
Not surprisingly, Scalia's dissent in Roper last week took aim at Kennedy, albeit without attacking him by name.
"The votes in today's case demonstrate that the offending of selected lawyers' moral sentiments is not a predictable basis for law -- much less a democratic one," he noted.
Invoking the motto that adorns the court's main entrance, Scalia, 68, added: "What kind of Equal Justice under Law is it that -- without so much as a 'Sorry about that' -- gives as the basis for sparing one person from execution arguments explicitly rejected in refusing to spare another?"
But Justice John Paul Stevens, the only member of the court's current liberal bloc who was on the bench in 1989, and who has now lived to see his dissent in Stanford become the law of the land, fired back in defense of Kennedy.
Stevens, 84, wrote that if Scalia's view of the Bill of Rights -- that its meaning was fixed by the common-law standards of 1791 -- were to prevail, there would be nothing unconstitutional about the execution of a 7-year-old child.
"[T]hat our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text," Stevens wrote.
