The Supremes and Planet Liberal

I have now read Justice Kennedy's execrable decision striking down the right of states to put minors to death. I have just a few modest considerations:

How does, "in chilling, callous terms he talked about his plan, discussing it, for the most part, with two friends.... Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they "could get away with it" because they were minors."

...square with, "These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means .their irresponsible conduct is not as morally reprehensible as that of an adult. Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment."

How bad does it have to get, Your Honor, before an act like this kid's is considered "as morally reprehensible as that of an adult?" He knew what he was doing, even to the extent of planning on the minors' exclusion to get him off. Most gang members--some of the most vicious murderers on the planet--are under 18. John Lee Malvo, Dylan Klebold, and Eric Harris would all escape the death penalty according to this ruling. As I see it, this kid should not only be killed, he should be trussed up tightly inside a newly skinned cowhide with a colony of fire ants and left in a Laredo parking lot for a week in August. But that's just me...

Further, how does, "our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty"

...square with this news? I know this practice of "law" in an enemy nation is a strong recommendation for abolishing the execution of minors, but it does show the world as it really is, not how Kennedy, Breyers, etc., think it should be on Planet Liberal.

Since when should the constitutionality of United States law be in part determined by reference to the laws of other nations? Kennedy: "the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment.s prohibition of .cruel and unusual punishments." What gives here?

Also, someone with greater legal acumen please tell me: is it usual for the Supremes to invoke a "national consensus" of states' positions to justify a Federal court ruling, as Kenney, et al, have done here? Isn't that kinda sorta allowing certain states to dictate the internal policies of other states? And isn't that kinda sorta one of the things our Consititution was written to prevent? Are we determining constitutionality here, Justice Kennedy, or writing policy?

Justice O'Connor puts the issue correctly, I think:

The rule decreed by the Court rests, ultimately, on its independent moral judgment that death is a disproportionately severe punishment for any 17-year-old offender. I do not subscribe to this judgment. Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But the Court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case. Nor has it been shown that capital sentencing juries are incapable of accurately assessing a youthful defendant's maturity or of giving due weight to the mitigating characteristics associated with youth.

Finally, one of my heroes--Justice Scalia--was typically biting and insightful:

The Court thus proclaims itself sole arbiter of our Nation's moral standards--and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

Me too.

Update: Lileks has a great take on this:

It upended laws concerning the execution of juvies because five judges didn’t much like the law, and were alarmed to find it was out of step with the direction of the drift of the emanations of the penumbra of several judicial decisions in Europe. I’m not all that keen on the death penalty; I think it lets them off the hook. I want killers to die in jail, alone, forgotten, with their last meal consisting of steak-flavored mush and Sanka. But the reasonings don’t seem based in that pesky Constitution itself, and the very idea of using foreign law as some sort of guide for American law unnerves me as much as it angers me. I know: let’s use Iranian law to settle the constitutionality of divorce, right now. Someone bring a case.

Monk