In 1992, before delivering the Supreme Court's ruling in an abortion case, Justice Anthony Kennedy stood with a journalist observing rival groups of demonstrators and mused: "Sometimes you don't know if you're Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line." Or perhaps you are a would-be legislator, a dilettante sociologist and a free-lance moralist, disguised as a judge.
Last Tuesday Kennedy played those three roles when, in yet another 5-4 decision, the court declared it unconstitutional to execute people who committed murder when they were under 18 years old. Such executions, it said, violate the Eighth Amendment proscription of "cruel and unusual" punishments because. . . . Well, Kennedy's opinion, in which Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens joined, is a tossed salad of reasons why those five think the court had a duty to do what state legislatures have the rightful power and, arguably, the moral responsibility to do.
Although the court rendered an opposite decision just 16 years ago, Kennedy says the nation's "evolving standards of decency" now rank such executions as cruel and unusual. One proof of this, he says, is:
Of the 38 states that have capital punishment, 18 bar executions of those who murder before age 18, five more than in 1989. So he constructs a "national consensus" against capital punishment of juvenile offenders by adding a minority of the states with capital punishment to the 12 states that have decided "that the death penalty is inappropriate for all offenders."
But "inappropriate" is not a synonym for "unconstitutional." Kennedy simply assumes that those 12 states must consider all capital punishment unconstitutional, not just wrong or ineffective or more trouble than it is worth -- three descriptions that are not synonymous with "unconstitutional."
While discussing America's "evolving standards of decency," Kennedy announces: "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty." Why is that proper when construing the U.S. Constitution? He is remarkably unclear about that. He says two international conventions forbid executions of persons who committed their crimes as juveniles. That, he thinks, somehow illuminates the meaning of the Eighth Amendment.
Kennedy evidently considers it unimportant that the United States attached to one of the conventions language reserving the right "to impose capital punishment . . . for crimes committed by persons below eighteen years of age." The United States never ratified the other convention Kennedy cites. Kennedy the roving moralist sniffily disapproves of that nonratification as evidence that America is committing the cardinal sin of being out of step with "the world community."
Kennedy the sociologist says "any parent knows" and "scientific and sociological studies" show that people under 18 show a "lack of maturity" and an "underdeveloped sense of responsibility" and susceptibility to "negative influences" and a weak aptitude for "cost-benefit analysis." All of this means, he says, that young offenders "cannot with reliability be classified among the worst offenders."
Well. Is it gauche to interrupt Kennedy's seminar on adolescence with some perhaps pertinent details? The 17-year-old in the case the court was considering bragged about planning to do what he then did: He broke into a woman's home, put duct tape over her eyes and mouth, wrapped her head in a towel, bound her limbs with electrical wire, then threw her off a railroad trestle into a river where, helpless, she drowned.
Justice Antonin Scalia, joined in dissent by Justices William Rehnquist and Clarence Thomas (Justice Sandra Day O'Connor dissented separately), deplores "the new reality that, to the extent that our Eighth Amendment decisions constitute something more than a show of hands on the current Justices' current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years)."
Kennedy occupies the seat that 52 Senate Democrats prevented Robert Bork from filling in 1987. That episode accelerated the descent into the scorched-earth partisanship that was raging in the Senate Judiciary Committee at the very moment Tuesday morning that Kennedy was presenting the court majority's policy preference as a constitutional imperative. The committee's Democrats were browbeating another appellate court nominee, foreshadowing another filibuster.
The Democrats' standard complaint is that nominees are out of the jurisprudential "mainstream." If Kennedy represents the mainstream, it is time to change the shape of the river. His opinion is an intellectual train wreck, but useful as a timely warning about what happens when judicial offices are filled with injudicious people.