Five justices of the Supreme Court ignored inconvenient facts, along with a good deal of precedent, to reach the preordained outcome they sought. Forgetting Facts While Making Law

The facts really should matter — especially when the justices of the highest court in the land exercise their most awesome power to strike down laws duly enacted by our elected representatives.

There is no check, after all, on the Supreme Court’s power of judicial review — other than waiting for sitting justices to retire and be replaced with new jurists willing to reconsider prior errors.  So in our system of limited government, with its separation of powers, we depend upon our unelected lifetime-tenured judges to restrain themselves from implementing their own moral, social and political values when they are unsupported by a plain understanding of the Constitution and at odds with the choices we make through the democratic process.

This is the reason last week’s Supreme Court decision imposing a blanket ban on the death penalty for minors was so disappointing.  Not only did five justices “exercise [their] own independent judgment” — rather than that of the Constitution or the American people — to determine that the death penalty “is a disproportionate punishment” for all juveniles, but the majority did so by ignoring the factual record of the case being decided.

True, much commentary has chastised the majority’s weak legal reasoning, and even more has denounced the five justices’ citation to foreign law as support for their new interpretation of the Eighth Amendment to the U.S. Constitution.  But what was most shocking about the decision in Roper v. Simmons, No. 03-633, was the majority’s willingness to completely disregard the uncontested facts in order to reach a new constitutional conclusion.

There were two fundamental bases of the decision, and both were factually flawed.

First, the five justices concluded that, over the past 15 years, a “national consensus” had emerged “against the death penalty for juveniles.”  And second, the majority reasoned that capital punishment served no legitimate purpose when imposed on minors because the death penalty acted neither as a deterrent against juveniles committing future heinous crimes nor as proportional retribution for society.

The first conclusion was necessary because, according to the five justices, the Eighth Amendment’s “prohibition against ‘cruel and unusual punishment’ must be interpreted” not only “according to its text,” but also by “referring to ‘the evolving standards of decency that mark the progress of a maturing society.’”  Thus, only if American society has “evolved” to a point where executing minors is considered to be disproportionate punishment would it likewise be “cruel and unusual” under the Eighth Amendment.

But when it came to marshalling the evidence for a broad “national consensus” against imposing the death penalty on minors, the majority had little to offer.  In fact, as disclosed in the appendix, 20 states (or 40 percent of the country) had laws currently on the books allowing for the execution of juveniles at the time the five justices issued their ruling — meaning that the national consensus touted in the decision accounted for 60 percent of the country.  While 60 percent is certainly a majority — large enough to end a filibuster in the U.S. Senate — it stretches the meaning of “consensus” beyond all recognition to suggest that a three-fifths majority constitutes “general agreement” or “group solidarity in sentiment and belief,” as Merriam-Webster defines the word.

As to the second conclusion that sentencing minors to death would serve neither as a deterrent nor as proper retribution, the five justices needed to look back only a few pages to find their evidentiary error.  After all, on Pages 1 and 2 of their opinion, the five justices recited the facts of the case and clearly noted that the teenage murderer who petitioned the High Court had not only discussed his plan “to murder someone … [i]n chilling, callous terms,” but had also “assured his friends they could ‘get away with it’ because they were minors.”  Yet 15 pages later, the same five justices struck down all capital sentences for juveniles because of their “lesser culpability” and because “‘[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis’” necessary for criminal deterrence “‘is so remote as to be virtually nonexistent.’”

Quite simply, the contrary facts were staring the five justices of the majority right in the face.

In the courts — all courts — the facts should matter.  But last week, as in too many cases before, five justices of the Supreme Court ignored inconvenient facts, along with a good deal of precedent, to reach the preordained outcome they sought.  In so doing, they not only undermined their own legitimacy, but also that of the rule of law, which serves as the foundation of our representative democracy.  There are very few external checks on the power of our judiciary, and if the facts don’t matter in our courts, then the judges will face almost no boundaries at all.

March 10, 2005
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