THE MORNING AFTER the Supreme Court struck down the juvenile death penalty as a form of cruel and unusual punishment in Roper v. Simmons, the reaction in the Supreme Court press room was unusually scathing. A liberal journalist lamented that, ever since Justice Anthony Kennedy, who wrote the 5-4 opinion for the Court, styled himself as a judicial statesman, he has become insufferable, out of control, and “deserves to be slapped.” A conservative journalist chimed in that the decision was embarrassing, because the justices had imposed their own moral preferences on the country without attempting to convince those who disagreed.
The consensus among our ideologically diverse little band was revealing. Roper v. Simmons is indeed embarrassing. Social conservatives view it as the latest symptom of the internationalization of the culture wars, with U.S. courts striking down traditional practices in the name of purported international moral values. But there is a liberal case against Roper as well. It is analytically sloppy and glib in its attempt to impose an international consensus where none in fact exists. And liberals should be wary about relying too heavily on international consensus. To the degree that foreign authorities do agree about moral values in other cases involving basic rights, they tend to be far less consistently progressive than liberals assume.
KENNEDY BEGINS HIS opinion by declaring that a “national consensus” against executing 16- and 17-year-olds has developed since the Court upheld the juvenile death penalty in 1989. But, 15 years ago, 25 out of the 37 states that allowed the death penalty also allowed juvenile executions; today, only four states have changed their minds. As Justice Antonin Scalia argued in one of his most effective dissents, “Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus.”
The Supreme Court in the past has performed a legitimate role in bringing a handful of outlier states in line with genuine national consensus, as it did in 1977, when it held that the Eighth Amendment prohibited the death penalty for rape in a case where only one jurisdiction in the nation authorized the punishment. But, to prevent a majority of death-penalty states from retaining a long-standing practice because a narrow majority of all states have repudiated it is hard to reconcile with federalism—a value that Kennedy, in other cases, has made the centerpiece of his relentlessly activist judicial philosophy.
Kennedy goes on to say that justices should consult their “own judgment” in deciding whether 16- and 17-year-old murderers can be considered as legally culpable as their older counterparts. Citing hotly contested psychological studies, he announces that juveniles are less culpable than adults. But surely this is a moral as well as a psychological question, about which reasonable citizens (and reasonable scientists) disagree. Indeed, for centuries, Americans and Europeans have been at odds about precisely this moral question. “Europeans are inheritors of a canon law tradition that strictly limits the punishment of minors on the theory that minors can’t form the same criminal intent as adults,” says James Whitman of Yale Law School. By contrast, the English and U.S. common law tradition has taken a very different view. If Kennedy’s decision were carried to its logical conclusion, it might call into question not only the juvenile death penalty, but also the substantive criminal law in many U.S. states.
Kennedy is unconcerned about trumping American values with foreign ones. In the most controversial part of his opinion, he claims that “international authorities“ are “instructive” when the Supreme Court interprets the Constitution. Conservatives were alarmed when Kennedy cited international authorities in striking down U.S. sodomy laws two years ago. His careless treatment of international public opinion in Roper has vindicated their fears. Kennedy notes that all countries but the United States and Somalia have ratified the U.N. Convention on the Rights of the Child, which prohibits the death penalty for criminals under 18. But, of course, the reason the United States refused to ratify the convention was because the White House and Congress judged the prohibition on the juvenile death penalty inconsistent with the values of the American people. For the Court to invoke this treaty as purported support for its own contrary judgment about American values is perverse—and should give liberals, who believe in democratic principles, no reason to cheer.
Kennedy is also wrong to suggest that it’s possible to generalize meaningfully about a purported international consensus on any hotly contested issue involving life or death, crime or punishment. As the European response to September 11 shows, the United Kingdom, France, and Germany disagree dramatically about the appropriate line between privacy and security. And, as Franklin E. Zimring argues in The Contradictions of American Capital Punishment, large majorities of citizens in Great Britain, Germany, Canada, and Australia favored the death penalty when liberal elites persuaded their governments to abolish it in the postwar period and continued to support it for years after. It was only after most national governments in Europe had abolished the death penalty on their own initiative that the Council of Europe states came to condemn it as a violation of human rights. Moreover, as Whitman suggests, the reason that majorities in some European countries came to oppose the death penalty in recent years reflects a growing commitment to secularism that is absent in the United States. “In a strongly Christian country like the U.S., there’s a philosophical tradition that allows us to talk about the death penalty as if it gives meaning to the life of the accused by encouraging repentance,” says Whitman.
Of course, it’s hard to see why the views of European states that have abolished the death penalty should be relevant evidence of an international consensus about the juvenile death penalty. The relevant states are those that have retained the death penalty. And Kennedy’s treatment of social attitudes there is sloppy. He notes, for example, that only a handful of countries have executed juvenile offenders since 1990 but fails to examine the case of Japan, the death-penalty country that most resembles the United States—but which has a different definition of juveniles. Japan allows the execution of 18- and 19- year-olds, but explicitly categorizes them as “juvenile offenders,” since, in Japan, the age of majority for most purposes (including voting and marriage without parental consent) is 20. Japan, then, is an example of a market democracy that allows juvenile executions.
CONSERVATIVES ARE RIGHT to fear the internationalization of the culture wars- -that is, the danger that American traditions will be struck down in the name of international values. But liberals should fear this development as well. Kenneth Anderson of the Washington College of Law predicts that, in the wake of Roper, citations to international authorities “will spread throughout the U.S. judicial system like an Internet virus—because both sides will have to assume in any litigation that it now matters.” We may soon see shaky claims about a purported international consensus invoked in cases ranging from corporate litigation to free speech. And liberal values will hardly be reliable winners. As Jack Goldsmith of Harvard Law School suggests, the U.S. constitutional tradition tends to be much more libertarian and protective of rights than the European one in cases involving hate speech, defamation, abortion, and criminal procedure. If the German Constitutional Court’s vision of abortion or free speech were imposed on the United States, for example, liberals would protest in the streets.
Eventually, Congress may have to step in to curb this mess, just as it has done every time the Supreme Court has attempted to thwart a determined national majority. (Congressional Republicans have already introduced a resolution stating that judicial decisions should not be based on international law.) With characteristic passive-aggressiveness, the Court has struck down a practice that appears to get the support of significant minorities in local polls. (Narrow national majorities support the practice when there is a specific murderer attached to the question, such as the Beltway sniper.) But Roper is an invitation to the worst kind of judicial activism. The United States has been down this road before, during the Warren era, and liberals have only just begun to wean themselves of the urge to fight their battles in courts rather than legislatures. This time around, courts are even less likely to be predictable supporters of the values of American liberals, who will come once again to regret having succumbed to the temptations of activism.
This article appeared in the March 21, 2005 issue of the magazine.