On Roper and Stare Decisis

First, in the interest of full disclosure I will admit that I oppose the death penalty in all regards. This bias may or may not interfere with my interpretation of Roper v. Simmons. In any event…many people are having a hard time digesting this ruling not because of the result, but because of the logic behind it. The logic of the opinion goes like this. Courtesy of Mark Stancil,

The Eighth Amendment reflects an evolving standard of decency, discerning which requires a two-step process. First, look at the “objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question.” Second, the Court “must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.”

The problem that most have with this case is that the justices have taken it upon themselves to decide the “standard of decency” held by the United States population as a whole. They disagree that it is the Supreme Court who is to decide the “standard of decency.” Now it is one thing to disagree with the Court’s finding as to whether the standard of decency has changed. In fact many people take issue witht this alone, but it is entirely different to take issue with whether it is the Court’s responsibility to decide this issue(i.e., whether juvenile death penalties are “cruel and unusual”).

Here’s a quiz. Who wrote this?

[Petitioners argue] their punishment is contrary to the “evolving standards of decency that mark the progress of a maturing society,” They are correct in asserting that this Court has “not confined the prohibition embodied in the Eighth Amendment to ‘barbarous’ methods that were generally outlawed in the 18th century,” but instead has interpreted the Amendment “in a flexible and dynamic manner.” In determining what standards have “evolved,” however, we have looked not to our own conceptions of decency, but to those of modern American society as a whole. As we have said, Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent.

I’ll give you a hint, his name starts with an “S” and ends with “calia.” Scalia, writing in Stanford v. Kentucky, acknowledges that when determining whether a particular punishment is “cruel and unjust,” the Court must determine the “conceptions of decency…of modern American society as a whole.”

So what was overruled in Roper v. Simmons? The test certainly remained the same. In determining whether the juvenile death penalty is a “cruel and unusual punishment” the Court used the exact method it used fifteen years ago in Standford v. Kentucky. The logic is virtually unchanged. The difference? They reached a different conclusion this time around.

Did they reach a different conclusion based on shaky evidence? Perhaps. Did they overturn Stanford with the reckless disregard for stare decisis? Absolutely not. Stanford put forth a straightfoward analysis. When defining “cruel and unusual” the Court must look toward the conceptions of decency of the society as a whole. In Standford, the Court recognized that the standard of decency will evolve, and after fifteen years, the Court found that it had. It was a simple application of the law.

As I stated before, taking issue with how the Court’s analysis(i.e., how many states have banned juvenile death penalties) panned out is one thing, but saying that the Court abandoned the law and stare decisis is another. In fact, its fallacious.

UPDATE: Matt Barr provides a coherent argument against the silly notion that because the United States is one of the relatively few nations that does(did) allow juvenile death penalties, it is therefore “unusual.”

UPDATE: Kevin Drum seems to agree. Via Prof. Bainbridge.