Kennedy Reversal Swings Court Against Juvenile Death Penalty

By Charles Lane
Monday, March 7, 2005

In banning capital punishment for juvenile offenders last week, the Supreme Court once again demonstrated its pivotal role in domestic and, indeed, world affairs.

The 5 to 4 ruling swept aside laws in 20 states that permitted juries to sentence 16- or 17-year-old murderers to death, thus ending the United States' status as the last country on Earth that sanctioned the execution of those who commit crimes when they are younger than 18.

And, to a large extent, this result was due to a remarkable evolution by a single justice: Anthony M. Kennedy.

It is sometimes said that justices "grow in office," producing opinions and casting votes on the court that confound the expectations of those who appointed them. Kennedy, 68, a 1988 appointee of President Ronald Reagan, has shown his unpredictability in the past. He changed his mind in the middle of a crucial 1992 case, casting a fifth vote to uphold Roe v. Wade ; he disappointed conservatives again with a landmark pro-gay-rights opinion in 2003.

Liberals gnashed their teeth when Kennedy flirted with permitting the Florida recount to continue in 2000--before casting a fifth vote to shut it down and propel George W. Bush into the White House.

But it is not often that a member of the court reconsiders his past views on a major issue as thoroughly as Kennedy did last week, when he supplied the court's four-justice liberal bloc the fifth vote it needed to abolish the death penalty for juveniles.

In 1989, during his first full term, Kennedy voted with a five-justice majority to uphold the death penalty for juvenile offenders. In that case, Stanford v. Kentucky , he joined an opinion by fellow Reagan appointee Antonin Scalia.

Reaching the opposite result in last week's case, Roper v. Simmons , Kennedy, writing for the majority, argued that times have changed. The number of states that either have no capital punishment or do not allow it for offenders under 18 had reached 30--evidence, Kennedy wrote, of "a national consensus" against the juvenile death penalty that had emerged since Stanford .

But his opinion also repudiated the legal reasoning he embraced in Scalia's opinion 16 years ago.

For example, the 1989 opinion calculated "national consensus" differently, excluding non-death-penalty states from the count; last week, Kennedy wrote that Stanford was wrong about that.

In 1989, Scalia, with Kennedy's support, wrote there was "no relevance" to laws that set 18 or more as the legal age for adult activities such as drinking and voting--and that it was "absurd" to consider them.

Last week, Kennedy appended to his opinion a list of state laws setting the age for voting, jury service or marriage without parental consent at 18 or above. "The age of 18 is the point where society draws the line for many purposes between childhood and adulthood," Kennedy wrote. "It is, we conclude, the age at which the line for death eligibility ought to rest."

In 1989, Kennedy agreed with Scalia in brushing aside scientific studies on the relative immaturity of adolescents. Such data could not prove capital punishment fails to deter all 16- and 17-year-olds, or that juveniles are inherently less morally blameworthy than adults; judgments about deterrence and blameworthiness should be left up to legislatures and juries, the Scalia-Kennedy opinion said.

Last week, though, Kennedy cited "scientific and sociological studies" for the proposition that "it would be misguided to equate the failings of a minor with those of an adult." The weighing of such factors could not be left up to juries, Kennedy wrote, because there is "an unacceptable likelihood" that jurors would be "overpower[ed]" by the brutal details of some teenage crimes.

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.

Justice Anthony M. Kennedy had joined a 1989 Scalia opinion allowing the death penalty for juveniles.

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