Spare the Chair, spoil the child
By a vote of 5 to 4, the Supreme Court struck down the death penalty for minors. My feelings on this news are 'complex' (I would say 'nuanced,' but Christ, that's just gay.)
First of all, I'm opposed to the death penalty. It's not because I'm against killing bad guys. On the contrary, I'm all for it. The more the better. My problem is that I don't fully trust the government to meet out death sentences fairly. I've spent my share of time on jury duty, and it's a sobering experience.
So I guess I should celebrate this decision... and I suppose I do, insofar as the outcome is concerned. But remember that old saying about "laws and sausages?" I'm beginning to think it applies to legal interpretation as well as crafting legislation. Why? Because I made the mistake of reading portions of Anthony Kennedy's opinion.
As the basis of his opinion, Kennedy cited several international treaties, including the unratified "UN Convention on the Rights of the Child." Does anyone else have a problem with this as the basis of U.S. law?
Again, I like the outcome, but I get a little nervous when a judge decides what outcome he wants a priori and then goes fishing to support his foregone conclusion. In this case, I think that's exactly what Kennedy did. Even worse, he had to go fishing in international waters. Ugh!
Comments
The Supreme Court is just too unchecked a power in our government. Judicial legislation or no, what exactly can we do to stop them? There need to be more restrictions that can be enforced.
Posted by: Adam | March 1, 2005 06:47 PM
The Supreme Court certainly has a lot of power - primarily by declaring laws unconstitutional. That's the primary check on the legislative power. The check on the Supreme Court is basically the fact that the members must be confirmed by the Senate. If a potential Justice is disliked by enough Senators, he/she doesn't make it to the highest bench.
Of course, the Constution of the U.S. and the various states can always be amended. The Supreme Court must always follow the Constitution (although this has proven a tricky thing in practice). I suppose you can say this is a way of "curbing" the power of the Court. But of course, amending a constitution is a difficult (and rightly so) thing to accomplish.
I like this ruling. I don't like capital punishment in general anyway, so of course I'm happy we're no longer going to be putting kids to death. I don't particularly care for what other countries think of what we do, but we should always let our own consciences be our guide.
Posted by: Tracy Miller | March 1, 2005 10:30 PM
Some scholars think there is a check on the Supreme Court in Article III of the Constitution: "...the Supreme court shall have appellate jurisdiction, both to law and fact, with such restrictions, and under such regulations as the Congress shall make." It seems to imply that Congress can limit and restrict SCOTUS's jurisdiction, although to my knowledge this has never been tested.
Posted by: Barry N. Johnson | March 1, 2005 10:53 PM
I am a liberal who opposes the death penalty, certainly for minors. That said, I am troubled by the fact that they seem to be reaching beyond the "cruel and unusual punishment" cited in the bill of rights to foreign sources. There are times when the meaning of certain phrases can be enlightened by studying underpinning foreign law, but that should only be used to clarify how to interpret and apply American law.
That said, I don't think that we are going to hell in a handbasket because of the Supreme Court over reaching. Kennedy may be a little suspect in his reasoning, but he is a pragmatist. The decision to not allow states to execute minors isn't that earth shattering, nor was the decision in support of homosexuals being able to have sex in their own home. In both cases, the Supreme Court was making all states take on laws that most states had already.
As far as Congress writing a bill that would limit Supreme Court powers, what would be happen if the Supreme Court then struck it down?
Posted by: PE | March 3, 2005 11:33 AM