Thursday, March 03, 2005

Blue State Court

"By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the nation?"
- Justice Scalia in his dissent in Roper v. Simmons

I couldn't help but post this op-ed piece from yesterday's WSJ. It's on the ruling handed down by the Court yesterday regarding the matter of the execution of 16 and 17 year olds. I think because I chose an op-ed from the Wall Street Journal everyone will have no trouble in figuring out my opinion on the decision.

I'll keep this short because I'm sure someone might have something to say to the contrary but the decision yesterday was just short of infuriating to me. The Court has proven again that it is willing to shamelessly legislate from the bench. Justice Kennedy, who 15 years ago voted with the majority in upholding the ability of judges to decide on a case to case basis whether a 16 or 17 year old deserved the death penalty, has bowed to an "evolving standard" of decency. Okay, we all know what a fan I am of living constitution arguments, but c'mon, this is going a bit far. Kennedy does not offer up any solid constitutional ground for why the Court decided to legislate on the issue. As Justice O'Connor, someone I'm not prone to referencing, explained that if she were a legislator she might be inclined to raise the age of execution to 18 but as a Justice on the Supreme Court she could see no constitutional basis for doing so. Smart words...I can't believe I just said that! But the smartest words came in Justice Scalia's dissent, not to mention the funniest.

I'm sure plenty of people disagree on this issue but let's remember the Supreme Court's proper role is not to create law and sample the country in an effort to detmine an "objective indicia of consensus." I'm now going to turn to the text of the Constitution, something that isn't done nearly enough these days:

Article I, Section I:
"All legislative Powers herin granted shall be vested in a Congress of the United States..."

Article III, Section I:
"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish..."

...Read More!


  • Good post Kris. I'm not going to argue with you on this one, seeing as I don't particularly like tuesday's decision on consititutional grounds, but on merits it serves as a means to a necessary end. But just remember, if you want to talk about legislating from the bench, I can hang Bush v. Gore in front of you all day long.

    By Blogger rabbit, at March 4, 2005 at 5:57 AM  

  • Good I hope you do hang it in front of me. You know and I know that I'm not a particular fan of Bush v. Gore on multiple grounds. But thanks for bringing that to everyone's attention.

    By Blogger Kris, at March 4, 2005 at 11:36 AM  

  • Oh, dude, I sent you that FOX News lapel pin the other day, so be on the lookout for it. It's on McLaughlin stationary, so don't throw it out.

    By Blogger rabbit, at March 4, 2005 at 4:50 PM  

  • Just short of infuriating? What'll it take to infuriate you enough to impeach Justice Kennedy? This is NOT a first offense!

    By Anonymous Anonymous, at March 8, 2005 at 8:26 AM  

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