The Death of the Court’s Respectability

George C. Landrith

The U.S. Supreme Court is at it again – killing its own credibility by legislating from the bench while pretending to interpret the Constitution. The latest example is Roper v. Simmons – in which the court decided by a 5 to 4 majority that the U.S. Constitution prohibits the imposition of the death penalty on a criminal who robed, kidnapped, raped and killed an elderly woman only a few months before he turned 18. The Constitution says no such thing. Let me make something clear from the start, I believe reasonable and intelligent people can support or oppose the death penalty for criminals aged 40 or 17. However, intelligent and reasonable people cannot disagree that the U.S. Constitution clearly allows the death penalty and nowhere does the Constitution ban or prohibit the death penalty.

Justice Sandra Day O'Connor's dissenting opinion made this very point – she correctly voted that Constitution does not outlaw the death penalty for murderers who are almost 18 year old, but that if she were a legislator rather than a judge, she, “too, would be inclined to support legislation setting a minimum age of 18.” That is the whole point. When the Constitution is silent, who decides? The people do – through their elected representatives – not unelected judges.

My point is simply this – one can reasonably oppose the death penalty, but one cannot seriously argue the U.S. Constitution bans it. Democratically elected and accountable legislatures have the responsibility to make law. Courts have the responsibility to interpret the law, but no authority to pass legislative acts. In Roper v. Simmons, the Court majority violated its oath of office to uphold the Constitution, took off its judicial robes and grabbed the powers of an anti-democratic, unelected, life-appointed super-legislature. They passed legislation banning the death penalty for the most heinous 17 year-old murders. Had a legislature done that, it would have been within their authority. One could argue they were mistaken to do so, but one could not argue that the legislature lacked the authority to do it. But when the Court does this sort of thing, it oversteps its constitutional authority and kills its own credibility – even if you agree with the result.

It is a curious decision on many levels. Justice Anthony Kennedy who wrote the majority opinion argued that a teenager only a few months from his eighteenth birthday cannot fully comprehend or understand that robbing, kidnapping, raping and killing an elderly woman is wrong. Yet, in another line of cases, the Court also posits that a twelve-year-old girl fully comprehends and completely understands the import and impact of terminating an unwanted pregnancy and thus does not need the involvement of an adult. Perhaps Justice Kennedy can explain this logical anomaly.

About three years ago, Kennedy correctly believed that the Constitution did not ban the death penalty for 17-year-old murders. So what did he find in the Constitution in the last few years that caused him to change his mind? Actually, he did not find anything new in the Constitution, but he turned to foreign law to help decide this constitutional case. For example, Kennedy seemed more interested in the views of the European Union than of the legislatures twenty states in the United States. He even had the audacity to cite as authority the United Nations Convention on the Rights of the Child, which the United States did not ratify. How can a treaty we rejected, be the basis for interpreting our Constitution?

Kennedy also incorrectly asserted that the Court had the authority to make the decision because there are “evolving standards of decency that mark the progress of a maturing society.” There are no doubt evolving standards and that is reflected in a representative democracy by the legislature amending laws – not by courts imposing their political will upon the rest of us while pretending to interpret the Constitution.

Kennedy also talked of helping to find a “national consensus” on the death penalty. When did the Court acquire the power to determine the “national consensus?” Twenty states had laws, which permitted a jury to consider the death penalty for the most heinous 17 year-old killers. Does this mean that the Court will simply impose a national consensus on America every time 26 states (a bare majority) pass laws similar to each other? For example, if 26 states pass maximum speed limits of 55 miles an hour, should the Court take off its judicial robes and act as an unelected super-legislature and mandate that all states have speed limits of 55 miles per hour? Heaven help us!

I assume Justice Kennedy wants us to respect him and the Court. Yet, his decision is a direct assault on his and the Court’s credibility. The Court derives its power not by the sword, but by the respect it earns from the people. How can the people respect the Court when justices frequently violate their oath of office and effectively take off their judicial robes, abuse their position in a raw political power grab, crown themselves an unelected life tenured super-legislature, and impose their ideological views on the rest of us. It is the very definition of judicial tyranny. This is why so many hold the Court in contempt.

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Mr. Landrith is a graduate of the University of Virginia School of Law, where he was Business Editor of the Virginia Journal of Law and Politics. He had a successful law practice in business and litigation. In 1994 and 1996, Mr. Landrith was a candidate for the U.S. House of Representatives from Virginia's Fifth Congressional District. He served on the Albemarle County School Board. Mr. Landrith is an adjunct professor at the George Mason School of Law. He is recognized as an authority on constitutional law and jurisprudence, federalism, global warming, and property rights.

george@ff.org