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April 12, 2009

Comments

"Why should judges look at law review articles?

The answer seems to be the same: to consider what may or may not be good ideas and sound reasoning or not."

They typically shouldn't. See Orin Kerr's piece on volokh:

Let's return to Justice Ginsburg's question: "Why shouldn't we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?" The difficulty is that if Ginsburg used law review articles in the same way as she favors using foreign law, it would cause the same reaction. The controversial citations to foreign law haven't been to specific decisions that the Justices point out as particularly deep or insightful. The Supreme Court never says, "Golly, I found this opinion by Lord Hobhouse of Woodbury and it's just briliant —it totally changed my mind about the nature of privileges and immunities!" Rather, controversial citations to foreign law tend to arise as part of a survey. Looking at the general category of foreign opinions, the thinking goes, we see a trend. Indeed, it's not even really clear that the Justice who wrote the opinion actually read the foreign law decision that is allegedly so wise.

An accurate analogy to citing law review articles would therefore go something like this. Imagine a Supreme Court decision striking down an abortion restriction that included this paragraph:
In reaching our decision, we find confirmation in the scholarship of our nation's law professors and law students. A review of legal scholarship indicates that it is overwhelming against abortion restrictions of this type. Our research has uncovered 19 articles and 42 student comments on this issue, and all but six take a critical position towards legislation such as the one before us. See, e.g., Lawrence Tribe, . . . . [citations omitted] We have much to learn from the wisdom of our scholars, both on faculties and those still in law school who are our scholars of the future. We see their judgment as further confirmation that our decision is correct.
I would think that would cause the same reaction among conservatives triggered by the Court's citation to foreign law in cases like Lawrence and Roper. It's not about "sources of wisdom," it's about the culture wars.

On issues like the death penalty, the Justices aren't appealing to international legal reasoning. They are appealing to a straw poll of the people that get the answer they want (in this case European legislative decisions. (And you should note that specifically do not quote polling on the death penalty, even in Europe. Which makes sense because even in Europe the death penalty doesn't poll badly.)

As for defining terms by the changing times, I have a problem with that for things that existed at the time of passage. The death penalty isn't something that was new and unheard of at the time of the passage of the 8th Amendment. You can allow it to change with social mores, but you can't do that AND pretend that interpreting it that way has anything to do with the counter-majoritarian function of the court. You can argue that "cruel and unusual" has to be interpreted in the context of modern social mores, but once you do that you cannot logically avoid dealing with the fact that a majority of Americans seem to be ok with the death penalty--which is to say that "modern social mores" or however you define it can't be countermajoritarian. (And you don't get that even if you count people in Europe as having a vote as opposed to the governments of Europe. )

Why should judges look at law review articles?

The answer seems to be the same: to consider what may or may not be good ideas and sound reasoning or not.

What's the problem here?

I did not say they should not. However, they are at least secondary if not tertiary sources after text and legislative history. They are often cited as a means of attribution and judicial shorthand rather than "authority."

And I think there is a critical difference with how Koh wants to implement international law. It would be like taking a Rasmussen poll of the positions of various law review articles and using that as substance in determining how to apply the Constitution.

Russell:

could post links to the stuff you read.

Sorry, I get access through a proprietary database. I tried to find it on the net as well.

But here is an excerpt from a U.C. Davis law review article re the death penalty:

U.S. domestic courts, with their power to interpret domestic law to incorporate global norms, represent a prime channel for norm-internalization. Their interpretive powers give them the unique ability to incorporate international interpretation of global norms into domestic law. Yet in recent decades, efforts to invoke international law norms directly before the U.S. courts--and particularly the U.S. Supreme Court--have met with mixed success. . .

How should the Court decide Atkins? The Justices should begin by declaring that the Eighth and Fourteenth Amendments categorically prohibit the infliction by any American government official not only of punishments considered cruel and unusual at the time the Bill of Rights was adopted, but also those contemporary American penal practices that offend the “evolving standards of decency that mark the progress of a maturing society.” The Court should declare that it cannot meaningfully evaluate such “evolving standards of decency” without weighing both international and domestic opinion.
By so saying, the Court should treat as nonbinding dicta Justice Scalia's footnote in Stanford v. Kentucky dismissing the relevance of international opinion. As noted above, that dicta is both anti-originalist and increasingly harmful to U.S. foreign policy interests in an age of globalization.

I beg to differ on the anti-originalist argument. But as you can see, Koh is an activist, as in "let's get international law into our jurisprudence through the federal courts and trump not only congress but the legislatures of the 50 states" type of activism. At least on this and other issues.

My problem with Publius (and others) is the approach that says "oh, gee, no problem here! there's no debate!" Yes, there is a debate and of long standing. So quit saying that this is some anti-Obama new-found-and-made-up-for-the-moment argument! The difference in Koh as I see it is his unabashed activist bent.

If you read Koh's article above you find that he makes all sorts of policy arguments, the arguments one would expect to find in hearings in front of a legislative body. And that's the problem. He clearly argues that SCOTUS should hold its finger to the wind and use that to decide the 8thA. I find that approach dangerous and intellectually baseless from a constitutional perspective even if I might find it persuasive and appropriate in a legislative context.

And the "finger to the wind" approach is distinguishable from simply looking at other courts. I find that approach (looking to other court opinions) defensible in many situations but not all. However, what other peoples think is not a very good way to decide what THIS people thinks and is perfectly irrelevant to determining what the text of the Constitution means.

Koh's biggest intellectual argument seems to be the Declaration of Independence and early cases where SCOTUS looked to international law on commercial issues involving international transactions. How you get from those cases to using international peer pressure to decide what the Constitution means is unclear from this reader's perspective. But then I only have access to 7 articles or so.

Interestingly, Koh has no problem admitting that execution was fine at the time of the founding. He is, of all things, unabashed in his viewpoint that the Constitution is a living document subject to all sorts of judicial tinkering (I would say mischief, but that's just me).

And what Sebastian said.

bc: He is, of all things, unabashed in his viewpoint that the Constitution is a living document subject to all sorts of judicial tinkering

Everyone thinks like that. At least I hope they do, because if they believe the Constitution is dead and must be interpreted only according to how 18th-century gentlemen would think, they're ...nuts, basically. (You'd need to require a really solid grounding in 18th-century American aristocratic thinking, and of course you couldn't make any decisions based on the presumption that women have equal rights to men, or that black people aren't by default slaves, or that working-class people ought to have any influence in government in any way equivalent to the influence of an American aristocrat.)

The argument that the US Constitution is a dead document and must be parsed only in line with the Framers intentions, bears a startling resemblance to the argument that the Bible mustn't be "interpreted", but read literally in the original 17th-century English KJV.

...usually by the same people, too.

"Everyone thinks like that. At least I hope they do, because if they believe the Constitution is dead and must be interpreted only according to how 18th-century gentlemen would think, they're ...nuts, basically."

Lot of nuts out there.

"(You'd need to require a really solid grounding in 18th-century American aristocratic thinking, and of course you couldn't make any decisions based on the presumption that women have equal rights to men, or that black people aren't by default slaves, or that working-class people ought to have any influence in government in any way equivalent to the influence of an American aristocrat.)

Apparently this will come as a shocker to you, but originalists typically understand that the Constitution can be "amended", via Article V, so as to change it's meaning. And has been on those subjects. What originalists dispute is that the Constitution can have it's meaning changes without formal amendment.

Handy thing about changing the meaning of the Constitution by changing the words is, after you've done it people can read the Constitution and actually see the changes there. The down-side as far as living constitutionalists are concerned is the pesky possibility that the people might reject some of the changes they want.

"Interestingly, Koh has no problem admitting that execution was fine at the time of the founding. He is, of all things, unabashed in his viewpoint that the Constitution is a living document subject to all sorts of judicial tinkering (I would say mischief, but that's just me)."

Slavery was fine at the time of the founding. Women having no vote, and in most cases being unable to own property, was fine at the time of the founding. Religous prejudice and ethnic prejudice, in whom you gave a job to, or sold property to, or had other dealings with, were fine at the time of the founding.

Lots of things were fine at the time of the founding, which we've long since decided were no longer fine. In many cases these things were changed by court decision. Since Marbury v. Madison the courts have struck down laws they've found unconstitutional.

It seems quite clear to me, reading the Federalist Papers, and other documents of the time, that the Constitution was intended to be an extremely broad, extremely general, document, with the details left to the legislatures, the courts, and the people, to see fit to interpret and change as time wore on.

Indeed, there was much objection to the Bill of Rights, on the grounds that enumeration of any specific rights would lead to reasoning that rights not made explicit were not guaranteed by the constitution.

So far as I can see, interpreting the document in changing ways over time was the original intent.

Jes:

Uh, have you read the 14th Amendment? For that matter, where in the Constitution do you get that idea regarding working-class people? Go read some of the correspondence between John and Abigail Adams re slavery, the position of women, etc. Interesting interaction between those Bible thumpers.

And what Brett said.

A couple of responses to a couple of people:

Russell, at 4:55: Excellent comment.

bc: "I realize we're dealing with the 8th Amendment and not a criminal statute, but Koh is exactly arguing that."

Sapient replies: First of all, do you think we should hang the chicken thief? Do you think if Alabama passed a law allowing the hanging of chicken thieves that the Supreme Court would stand for it? If not, why not?

In bc's opinion, Brown was decided by activist judges, although they reached the right conclusion. bc would have decided the case on the grounds that the 14th Amendment made the Constitution colorblind. Wait a minute.... Colorblind? Where does the Constitution say colorblind? Where did you get that language, bc? From watching tv? From international law? From a book? Not from the words of the Constitution! How would you have decided Brown? And why? Separate but equal sounds like "equal" to me. But the court looked at the reality and found that it wasn't.

Where did you get that language, bc?

From Justice Harlan's great dissent in Plessy, no less, the case that came up with "separate but equal" (although the Lousiana statute actually said "equal but separate.") If separate but equal sounds like "equal" to you, you just joined the majority of Plessy. Congratulations!

Go read Harlan's dissent. He says it much better than I. Although he doesn't say "colorbind" he states that the 13th,14th and 15th amendments "obliterated the race line." His opinion is not limited to the 14th A, but the 15th and 13th as well and the precedents thereunder eliminating badges of servitude.

BTW, he cites Blackstone. Thought you might get a kick out of that.

As for the chicken thief, the question pertinent to this discussion isn't whether I think SCOTUS would allow the law. IMHO, it would not be unconstitutional under the text of the 8th A or under the original understanding. As a policy matter, I'd have a hard time supporting hanging for what constitutes petty theft in the states where I am licensed.

This isn't a uniquely American issue. Legal globalization is everywhere and everywhere controversial.

The trouble is that there is no global democracy, so international law is necessarily undemocratic law. Sometimes (Internet protocols, accounting standards) it's hard to see any other way of doing things. But it's troubling nonetheless. Outside the US, it is at least as troubling to the populist left as to the right.

"Slavery was fine at the time of the founding. Women having no vote, and in most cases being unable to own property, was fine at the time of the founding. "

Gary, in your opinion do amendments have a role in the changing of the Constitution? Are you aware of the anti-slavery amendments? Do you know about 19th amendment giving women the right to vote?

Why has the amendment system been entirely abandoned by liberals seeking change? Did the issues suddenly become more difficult? Did the country suddenly become more divided? We used to have amendments on a fairly regular basis, what happened?

"It seems quite clear to me, reading the Federalist Papers, and other documents of the time, that the Constitution was intended to be an extremely broad, extremely general, document, with the details left to the legislatures, the courts, and the people, to see fit to interpret and change as time wore on."

You CAN believe that in a very general sense. But if you do, you can't ALSO believe that the very same clauses which are to change like that make up the countermajoritarian parts of the Constitution. So the 8th amendment CAN be interpreted in light of modern moral standards, but IF you do that you can't be intellectually honest and be countermajoritarian on the topic.

If you don't, you cease engaging in law interpretation and are acting out of political whimsy.

You can't honestly have it both ways.

You can argue that "cruel and unusual" has to be interpreted in the context of modern social mores, but once you do that you cannot logically avoid dealing with the fact that a majority of Americans seem to be ok with the death penalty

I can and will- not avoid it, but dismiss it. You're conflating popular approval of the death penalty with the idea that popular opinion would hold it to be neither cruel nor unusual. I suspect that subjecting [email protected] and child m0lesters to [email protected] [email protected] with a rusty razor blade would be popular with the American people- precisely because it is cruel. Thus, even if popular, it ought to be barred by the Constitution.

Speaking of [email protected] [email protected], I don't know why but I kept getting "We cannot accept this data" until I substituted a bunch of stuff...

On issues like the death penalty, the Justices aren't appealing to international legal reasoning.

Well, in this particular instance they're trying to gauge "cruel and unusual"; I suppose one could argue that they must use only guaranteed US sources in that determination, but I don't see any basis for that argument in the Constitution itself. If you were to agree that they are justified in looking at modern opinions on cruelty and unusual punishment, then they can look around at the world to get some idea of how the matter is viewed. Just as they iirc went state-by-state when attempting to determine whether executing juveniles (or perhaps mentally handicapped, I cant recall) had become "unusual".
[The idea that the Founders meant "cruel and unusual *for America*" seems odd, since America didn't have much history at that point to refer to. At a minimum, they'd be referring to Britain or Western Europe I think.]
In any case, using external sources to determine "unusual" is very different than how the Court might use outside sources when considering eg treaty interpretation, and I don't think that you can generalize from this example for that reason.

bc would have decided the case on the grounds that the 14th Amendment made the Constitution colorblind.

Interesting that the 'framers' of the 14th amendment clearly thought no such their about their amendment- the vast majority of contemporary jurisprudence concerning race did not recognize any such result. bc has argued in the past that those who ratified this amendment apparently did not understand it as well as he does today- but it's different, you see, because *he* is able to discern the *original* intent that almost all contemporaries were unable to find.

From Justice Harlan's great dissent in Plessy, no less, the case that came up with "separate but equal" (although the Lousiana statute actually said "equal but separate.") If separate but equal sounds like "equal" to you, you just joined the majority of Plessy.

Your simplication has lost the *ahem* original intent. If I may:
Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches.

Harlan saw through the facade of the law to its clear, actual intent- to discriminate against blacks and to stigmatize them. He did not say that government must be colorblind, just that attempts to disguise discrimination could not be hidden by the use of 'separate but equal'.
But note that he finds no discrimination against the white passengers. He does not suggest that any law that mentions race or uses racial categorization is invalid. Just that laws purporting to treat citizens equally while perpetrating a sham and actually acting in a discriminatory manner are invalid.

Go read Harlan's dissent. He says it much better than I.

And, I might add, he says something completely different to boot.

bc: where in the Constitution do you get that idea regarding working-class people?

The original idea of the government of the United States was that to avoid what the 18th-century thought of as "mob rule" and what we in the 21st century think of as "democratic government", an elite group of people from each State would cast their votes for the election of the President. Now some tinkering and activism has gone on since then, changing the original concept, but plainly, if you want to regard this as a dead document which must be interpreted according to 18th-century thought, back then they had no notion that the masses ought to be allowed the same voice in government as the aristocracy.

Why is the 18th century your ideal time, bc?

"You can argue that "cruel and unusual" has to be interpreted in the context of modern social mores, but once you do that you cannot logically avoid dealing with the fact that a majority of Americans seem to be ok with the death penalty

I can and will- not avoid it, but dismiss it. You're conflating popular approval of the death penalty with the idea that popular opinion would hold it to be neither cruel nor unusual. "

So on what hook do you hang changing social mores? Whose are changing enough to cause a Constitutional shift from allowing something to prohibiting it?

Carleton: Interesting that the 'framers' of the 14th amendment clearly thought no such their about their amendment- the vast majority of contemporary jurisprudence concerning race did not recognize any such result.

Just because early courts ruled against the original intent doesn't change the original intent. It was intended to overrule Dred Scott.

Your simplication has lost the *ahem* original intent. If I may:

I don't follow. Are you confusing original intent of the law at issue with the 14th A? I'm quite sure the intent of the drafters of the statute in question was discriminatory.

He does not suggest that any law that mentions race or uses racial categorization is invalid.

"In respect of civil rights, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States."

. . .

These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely, to secure 'to a race recently emancipated, a race that through [163 U.S. 537, 556] many generations have been held in slavery, all the civil rights that the superior race enjoy.' They declared, in legal effect, this court has further said, 'that the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states; and in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color"

Hmmm.

Jes:

The original idea of the government of the United States was that to avoid what the 18th-century thought of as "mob rule" and what we in the 21st century think of as "democratic government", an elite group of people from each State would cast their votes for the election of the President. Now some tinkering and activism has gone on since then, changing the original concept, but plainly, if you want to regard this as a dead document which must be interpreted according to 18th-century thought, back then they had no notion that the masses ought to be allowed the same voice in government as the aristocracy.

Why is the 18th century your ideal time, bc?

Why do you say that? I never said that. And why do you believe that "pure" democracy is inherently better than representative government? Do you support the extensive use of initiatives in California? Should we vote here on the budget? (It could have been me instead of Machado holding it up!)

As for the aristocracy angle, some self-supporting system they set up. The only Jefferson we've had besides the original is William Jefferson Clinton. A few family relationships here and there, but certainly no aristocracy (but please don't tell the Clintons; they think they're special).

All you need to know about aristocracy in America in those years can be learned by studying Washington. Sure, not perfect. Would that he freed the slaves earlier. But he tendered his sword when he was arguably the most popular man in the world and voluntarily stepped down from the presidency. Some aristocrat. Oh, but you say, that's just because his kids died . . . well, each to his own opinion.

Why do you say that? I never said that.

Because your argument appears to be that Supreme Court judges, at least, should not be allowed to move on from the 18th century, but must try as far as possible to think like 18th-century gentlemen when making legal decisons. (I might also ask why you are so anxious for the US Constitution to be considered a dead document, not a living one.)

And why do you believe that "pure" democracy is inherently better than representative government?

Huh? I think you're confusing things. Democracy may not be the best system of government, it's only the best one compared to all the others (as someone or other already said). The system envisaged by the Founders for appointing the President was a step away from representative government - that was the intent. The idea from the 18th century was that "the people" should not get to elect their choice of President, not without an intervening step of aristocrats deciding who the best candidate for the job was. Why you are confusing this with referenda in California, only you know.

All you need to know about aristocracy in America in those years can be learned by studying Washington. Sure, not perfect. Would that he freed the slaves earlier.

...and there were some issues with Indian massacres, weren't there...

But he tendered his sword when he was arguably the most popular man in [white America] and voluntarily stepped down from the presidency. Some aristocrat.

Yeah. That's what aristocrats, at their best, do. A person who has been brought up with a genuine belief that their superiority gives them the obligation to serve others, who is capable, intelligent, and thoughtful, will actually make a pretty good ruler. The problem with aristocracy as a system is that there is no guarantee that a person born to power and privilege will actually turn out to be the best person to wield it - see your latest hereditary aristocrats, George H. W. Bush and George W. Bush.

A few family relationships here and there, but certainly no aristocracy (but please don't tell the [Bushes]; they think they're special).

Fixed that for you. Odd mistake for you to make, confusing your political aristocracy with a couple of plebs from Arkansas who were loathed for not being "elite" enough, but there you go.

"I might also ask why you are so anxious for the US Constitution to be considered a dead document, not a living one."

Because it's not a living Constitution, it's an undead Constitution, brought to a shambling mockery of life, animated by a force alien to it. It's not a flexible Constitution, it's a Constitution broken on the wheel, bent in places it has no joints, to a terrible sound of splintering bone.

Because, Jes, the whole point of writing something down is to fix it's meaning, and if you can change it without changing the text, you've just robbed us of all the practical virtues of a writing down a constitution.

All because they can't be bothered to make the changes legitimately, perhaps from the fear that if you tried, they'd be rejected. I wonder if, even today, you drafted amendments that made the Constitution actually say what the courts read it to 'mean', if you could get them ratified. I doubt it.

It would be an interesting experiment, which would settle a lot of arguments. Perhaps we'll get a constitutional convention, and try it.

Because, Jes, the whole point of writing something down is to fix it's meaning, and if you can change it without changing the text, you've just robbed us of all the practical virtues of a writing down a constitution.

Ah: the Islamic argument. The text is pure, the text is God-given, the text must not be altered!

I shouldn't make fun. I do see the Islamic focus on the exact text of the Qu'ran as reasonable enough way to run a religion, while still allowing for modern interpretation - since, regardless, people do read a document for what it means to them in their own time and space, it's just they either admit to this or they lie about it! - but I think that it's an unworkable way to run a country, constantly looking back to the virtues of 18th-century thought.

No, not "the text must not be altered". It's, "If you want the text to mean something different, you MUST alter it"

You know, because religious texts can't be amended, all the needed changes have to be done by 'interpretation'. Laws aren't so limited, you can change the actual words, so if you want them to mean something different, you do alter them.

I'm not the one advocating that the Constitution be treated like holy writ, you are. I'm advocating that it be treated like LAW.

what we in the 21st century think of as "democratic government"

What do you mean by "democratic government", Jes? By this, I mean to ask: which of the manifold varieties of democracy do you have in mind when you say "democratic government"?

"If you want the text to mean something different, you MUST alter it"

"Cruel and unusual punishment" means something different in the 21st century from what it did in the 18th century.

The "arms" (and for that matter the "well-regulated militia") meant something different in the 18th century from what it does in the 21st century.

The belief that in order to change the meaning of a text you need to alter the text itself, kind of ignores the plain fact that the text is not in some little bubble of unchanging notime, a stasis field within which it remains frozen forever - it too is part of time and history, and no matter how hard you try, Brett, you cannot force Americans to read it as if they were living in the 18th century. The Society for Creative Anachronism will take you only so far.

I'm not the one advocating that the Constitution be treated like holy writ, you are. I'm advocating that it be treated like LAW.

Good. Then you're in agreement with everyone who says that the judges whose job it is to interpret it, get to interpret it like law, and not like holy writ. Which is to say - the exact opposite of what you seem to have been arguing all the way down this thread....

What do you mean by "democratic government", Jes? By this, I mean to ask: which of the manifold varieties of democracy do you have in mind when you say "democratic government"?

Huh? There's another form of democracy besides "Government by the people, exercised either directly or through elected representatives"? Oh wait, we've had this argument when the Republicans stole the 2000 and the 2004 election, so yeah, if you call what Bush did in Florida "democracy", there's that.

There's another form of democracy besides "Government by the people, exercised either directly or through elected representatives"?

I asked: which variety of democracy did you have in mind? Not: which non-democratic form of democracy do you prefer.

Something like "no particular form" is a possible answer, for example. Or "none of your damned business", even.

bc, thanks for including the excerpt.

My problem with Publius (and others) is the approach that says "oh, gee, no problem here! there's no debate!" Yes, there is a debate and of long standing.

Fair enough.

He clearly argues that SCOTUS should hold its finger to the wind and use that to decide the 8thA.

I don't see that in what you've excerpted here.

The case he's discussing is Atkins v Virginia. In that case the SCOTUS considered whether executing a mentally impaired person constituted cruel and unusual punishment.

Note that the "cruel and unusual" standard is not an innovation, but is specifically and literally the language in the original text of the 8th Amendment.

What I see here is Koh arguing that (a) it is proper for the court to consider contemporary standards for what is cruel and unusual in considering this case, rather than confining themselves to what would have been considered cruel and unusual when the Constitution was written, and (b) it is proper for the court to consider what other countries and/or international law calls "cruel and unusual" in this evaluation.

"Cruel" and "unusual" are terms that are difficult to define precisely. Determining whether something is "cruel" or "unusual" in a given circumstance requires judgement. As in, judges.

There are probably some things that can be objectively called "cruel", but there is a wide range of things that may be cruel in some contexts and not in others, or which may be considered cruel by some folks and not others.

"Unusual" is absolutely impossible to evaluate without considering what other folks do, either now or historically.

Net/net, I think Koh is correct to say that what other countries do, and/or what international law requires (whether we are bound to it by treaty or not) are completely relevant to a consideration of what "cruel" and "unusual" mean at a given place, time, and context.

Further, in our practice of democracy, it is specifically not just the right but the positive obligation of the SCOTUS to make that determination. Not the legislature, not the president, but the courts, and ultimately the SCOTUS.

That's what they do. Been that way since Marbury.

Koh is also not arguing here that justices should proactively go far and wide to solicit the opinions of other nations in their deliberation. He is arguing that the standards and norms of other nations should be allowed to be presented for consideration during arguments before the court, and calls for Scalia's dicta to the contrary to be held to be non-binding.

And just for giggles, note that at the time the Constitution was written, drawing and quartering, public guillotining, keelhauling, and burning at the stake were all well-established punishments among peer states of the US. Whipping, branding, stocks, and public hangings were commonplace here. Popular extra-judicial punishments included tarring and feathering.

Times change. Our understanding of what is cruel and unusual really ought to, also.

The one point on which I think we will agree is that I find Koh's apparent encouragment for judges to consider foreign policy implications in their deliberations to be wrong-headed.

Consider international norms and standards when establishing a context for evaluating what is cruel or unusual? To me, that seems not only reasonable, but correct.

Consider the subsequent implications for US foreign policy? Maybe the Department of State could file an amicus brief and they could take that into account (maybe), other than that I'd say it's not their job.

Thanks -

I asked: which variety of democracy did you have in mind?

And I answered, admittedly somewhat sarcastically, "Government by the people, exercised either directly or through elected representatives".

I'm repeating the question because I don't want it to get lost upthread.

So on what hook do you hang changing social mores? Whose are changing enough to cause a Constitutional shift from allowing something to prohibiting it?

If you want "cruel and unusual" to be a counter-majoritarian concept that is NOT tied to the original text, whose changing social mores are you using to change it? Why do theirs get to win over the majorities?

So on what hook do you hang changing social mores? Whose are changing enough to cause a Constitutional shift from allowing something to prohibiting it?

I thought we were discussing why the SC could look at outside sources to determine whether mores had changed, not whether Constitutional interpretation ought to take into account those changing mores.
I mean, we can have that other discussion (and apparently are), but we *were* talking about the legitimacy of citing of foreign sources.

Just because early courts ruled against the original intent doesn't change the original intent. It was intended to overrule Dred Scott.

Do you recognize that there is maybe some daylight between the concept that black people aren't slaves and the concept that government must be completely colorblind?

I don't follow. Are you confusing original intent of the law at issue with the 14th A?

I quoted Harlan's dissent and pointed out that he did not say that the government must be colorblind, merely that hidden discriminatory intent could be forbidden by the 14th amendment.
A little joke about your misintrepreting *Harlan's* intent.

You quote Harlan extensively, but it does not support your point. Harlan argues that the 14th guarantees all races equal rights, but he does not argue that government must be colorblind or that racial categorization by the government is invalid. Using categorization to deny rights is invalid, but that's not what you're arguing.
You're arguing that government must be colorblind. Harlan did not say this.

Hypothetical: After the Civil War, Southern states adopt laws that one can only have a government job if one can show that one's parents were literate- ostensably to 'ensure that the candidate has a strong backround in written communication'. Harlan votes to strike the law down as a transparent attempt to bar newly-freed blacks from government jobs.
And from this, you infer some sort of right to illiteracy. Harlan's point is not against separate but equal- it is against using 'separate but equal' to produce or continue unequal treatment. Thus, he goes on at length about protecting rights, but does *not* go on about disallowing actual separate but equal treatment.

*Today*, we recognize that separate but equal is an unacceptable formulation. For example, miscegenation laws were not seen as violations of the 14th amendment (yes, with one exception in a state court that was overturned). But that viewpoint is a novelty, an innovation, a new interpretation that has become the law of the land.

"I thought we were discussing why the SC could look at outside sources to determine whether mores had changed, not whether Constitutional interpretation ought to take into account those changing mores.
I mean, we can have that other discussion (and apparently are), but we *were* talking about the legitimacy of citing of foreign sources."

They aren't severable issues. The reason the foreign sources are being cited in the controversial cases in question is not because they have successfully tackled a novel legal issue that US law hasn't seen before.

They aren't being cited because they have amazing legal reasoning that is persuasive. (This is especially obvious in cases like Roper v. Simmons where the legal reasoning is barely mentioned.)

They are being cited for "the evolving standards of decency that mark the progress of a maturing society".

So to restate:

So on what hook do you the evolving standards of decency? Whose are changing enough to cause a Constitutional shift from allowing something to prohibiting it? Because it sure isn't Americans. And if you poll in Europe, it isn't particularly Europeans either with the major exception of Germany (France may have just dipped below 50% as of 1999 in some polls).

So whose evolving standards of decency are we talking about, and why should we listen to them?

the whole point of writing something down is to fix it's meaning

What's an "unreasonable" search or seizure?
What cause is "probable"?
How fast of a trial is "speedy"?
What makes a jury "impartial"?
What bail or fines are "excessive"?

If you want "cruel and unusual" to be a counter-majoritarian concept that is NOT tied to the original text

The full and entire standard expressed in the text is "cruel and unusual". There is nothing whatsoever in the text that discusses the context in which that is to be evaluated.

Majoritarian, counter-majoritarian. Taking a poll of people who bowl on Wednesdays. Reading pigeon entrails, throwing dice, employing a Ouija board.

The original text is silent. No further direction is given.

There is no path forward from the text to any meaningful application in the real world that does not require judgements to be made that are NOT TIED to the original text.

Because there's nothing in the original text that says one way or the other.

So whose evolving standards of decency are we talking about, and why should we listen to them?

Ultimately, the evolving standards of decency of nine people wearing black gowns.

We listen to them because we have given them the job of making the decision.

All because they can't be bothered to make the changes legitimately, perhaps from the fear that if you tried, they'd be rejected.

By all means, let us continue with the fiction that Conservatives do not engage in selective interpretation. Claiming that the phrase "commander-in-chief" somehow obscures all of the war powers granted to Congress and the Bill of Rights, claiming that signing statements have significance but simultaneously that floor debate must be ignored (ie Scalia in Hamdan- odd that we must use contemporary sources to understand the Founders' thinking, but contemporary legislative sources that go contrary to conservative desires are "impermissible"- this is a funny one- because that floor language differs from Scalia's "unambiguous" reading of the text itself).

If anything, conservatives are worse about this than liberals. They just cloak their hypocrisy in the fiction of Originalism.
Originalism can mean:
-'unambiguous' interpretation of the actual text, without other references (even if actual references are contrary to this 'unambiguous' interpretation)
-interpretation of the original text with contemporary documentation to determine definitions only
-interpretation of original text in context with other original documents or statements to determine intent and meaning
-interpretation of original text in context with other original documents, and in context of other existing laws and practices
-when all else fails, stare decisis (eg Thomas voting against a law in Raich, then turning around and supporting Ashcroft's rather creative use of that law to bar Oregon's assisted suicide law, having nakedly checked his principles at the door in order to reach his desired outcome)
-and all this is before the 'weighing of competing arguments' that all judges use to reach preferred outcomes. Thus, the unambiguous "commander in chief" trumps everything else.

The idea that the phrase "commander in chief" gives a President carte blanche in wartime is so strongly contradicted - by contemporary writings and the other sections of the Constitution pertaining to war powers - that it is fit only for ridicule.

bc, thanks for inspiring me to reread Justice Harlan's dissent to Plessy, where he does indeed use the word color-blind. However, the fact that he had an interpretation of the civil war amendments that you seem to agree with doesn't mean that he rested his opinion any more on the language of the Constitution than the majority did. There's nothing particular obvious from the meaning of the words of any of the three amendments that says that separate can't be equal. Separate glasses of liquid can hold equal amounts, for example. The concepts (as words) are different, and can coexist in a number of circumstances.

Harlan used his independent judgment, his knowledge of the facts, and his knowledge of the motivation behind the law in question to support his belief that the Civil War amendments required an integrated common carrier system. But on the words of the amendments alone, and certainly according to most people's views at that time, the majority's view in Plessy was just as reasonable as Harlan's.

And interestingly, in lauding the purpose of the civil war amendments (and as you quoted) Harlan stated that "These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world." Now, why in the world would he have cared about what people throughout the world may have thought?

"Ultimately, the evolving standards of decency of nine people wearing black gowns.

We listen to them because we have given them the job of making the decision."

No we really haven't. The idea of judicial review was based on the idea of legislatures violating the Constitution. That suggests that there ascertainable meaning independent of the judiciary that can be violated. If there is not, there isn't any compelling reason to vest such a power in nine unelected judges with life tenure.

That is one of the vexing problems with the legal realism school when you try to apply it to judicial review and Constitutional questions. Once you unfix the meaning, and throw it to "the evolving standards of decency of nine people wearing black gowns" as you put it, you have completely undercut the reason to bother with them having the power to overrule legislative acts.

And I'll note that even the judges aren't so bold as to make the claim. They pretend that the evolving standards of decency are American or world-wide standards. The only reason you have to retreat to "the evolving standards of decency of nine people wearing black gowns" is because the lie is so transparent on inspection.

"The idea of judicial review was based on the idea of legislatures violating the Constitution. That suggests that there ascertainable meaning independent of the judiciary that can be violated."

How do you arrive at the conclusion you make in the second sentence from what you say in the first? When a case arises it's because there's a dispute as to whether a statute violates the Constitution: usually the state thinks it doesn't and the aggrieved party thinks it does. They go before a court for judicial review where a judgment is made. I don't quite understand the reasoning that judges are like slot machines, able to spew out the robotic answer based on the formula demanded by the exact words of the Constitution. If this were the case, courts could be computerized.

The only reason you have to retreat to "the evolving standards of decency of nine people wearing black gowns" is because the lie is so transparent on inspection.

I'm not retreating to anything.

The Constitution isn't perfectly clear in its meaning at all points. It requires interpretation. The interpretation requires judgement. The folks who are charged, especially since Marbury, with rendering that judgement are the courts, and ultimately the members of the SCOTUS.

Even if you don't like "evolving standards of decency of nine people wearing black gowns", I don't think there is any avoiding "in the best judgement of nine people wearing black gowns".

There most certainly is an "ascertainable meaning" independent of the judiciary. In fact, there are *numerous* ascertainable meanings independent of the judiciary, and which further cannot be reconciled simply by following the sense of the original text. Because "the sense of the original text" is not always complete or clear.

Multiple ascertainable meanings is actually the problem.

So in the presence of a number of ascertainable meanings, we need to pick one so we can move on.

Nine folks in black robes do the picking.

Sometimes we like what they decide, and sometimes we don't. Most times some of us do and some of us don't. But even if *most* of us don't, their decision stands, at least until some subsequent decision overrules it, or until the meaning of the Constitution is clarified or changed by an Amendment.

That's how we do here in the good old USA.

If you think that's an inaccurate understanding of the situation, I invite you to explain how so.

My take on the Atkins case is that, were you to take a poll of residents of the US, you'd find that most would consider executing someone who is mentally impaired to be both cruel and unusual. Had the justices decided against Atkins, we would have sucked it up and lived with it, at least until next time. They didn't happen to decide that way, but the fact (if true) that the majority of Americans would have disagreed with them had they done so ought not to have determined their decision.

My take on the Koh thing is that conservatives don't like his opinions. That's fine, but as far as I can tell, and as far as anyone here has demonstrated to me, that's all we're talking about.

“Even if you don't like "evolving standards of decency of nine people wearing black gowns", I don't think there is any avoiding "in the best judgment of nine people wearing black gowns".”

Which brings us straight back to Roper. The Supreme Court had already *explicitly* ruled on the issue a decade before. In order for them to change the ruling they claimed an evolving standard of decency which transparently had not in fact evolved. They claimed an American ‘consensus’ despite 20 states having laws to the contrary of their ‘consensus’ with 4 more considering them at the time. They supported it by appealing to international legal authority in a way that had nothing to do with newfound persuasive arguments made by international courts. In fact it didn’t even bother with old-found persuasive arguments made by international courts.

If *that* is how it is supposed to work, I don’t see where the underlying authority comes from. It isn’t coming from the Constitution as a written document. It isn’t coming from the Constitution as a compact between the government and the people. It isn’t coming from the people at all. So what is the legitimate basis for that authority?

I understand the underlying authority for judicial review when you have a relatively fixed document. It is that the whole point of a Constitution is explain what the government can and can’t do. If the legislature transgresses those bounds, the judiciary reverse it.

I understand the rationale for interpreting in such a way that technology doesn’t strip protections—i.e. X-Rays are a ‘search’. Hilzoy uses the ‘poison’ analogy. If the Constitution forbids a certain use of poison, new discoveries about what things are poisonous will apply even if the original framers were unaware that arsenic was poisonous. And that is easy for factual issues

But if you are going to use evolving standards of decency, you have to wait for the standards to actually evolve. If you could demonstrate to me that 80% of the US was against the death penalty, feel free to strike it down in Georgia even if they want to keep it. But then you could demonstrate that the standards had actually changed. In reality, more states had the juvenile death penalty at the time of Roper than when the Supreme Court had previously looked at the issue. And the international picture hadn’t changed. So the standard internally was evolving in the opposite direction, while the external standard remained unchanged. So why the different ruling?

You aren’t explicating personal standards of decency. That isn’t what a judge is supposed to do.

And are you open to evolving standards of decency that go the other way? What if our society becomes more brutal? Will things that were cruel and unusual in the 18th century be ok then? Don’t think that is some impossible hypothetical. Empires in decline do all sorts of things.

"We have a colorblind Constitution. That is all the justification you need."

Not to sidetrack the discussion but if you (and Scalia and Thomas) were a true strict constructionist you would have to disagree with this statement. The 14th amendment does not say anything about being "colorblind" or ignoring race in any way. Additionally, the congress that ratified the 14th amendment certainly didn't consider it to mandate colorblindness since they proceeded to enforce it in ways which explicitly took race into account when remedying violations.

You aren’t explicating personal standards of decency. That isn’t what a judge is supposed to do.

I agree with this, and I understand why my earlier statement about the "evolving standards of nine people in black robes" might be read otherwise.

I don't think the SCOTUS should rule based on their personal (non-legal) preferences or opinions on a matter. I do think they should consider the opinion, however manifest, of the people of this country as part of their deliberations.

I *don't*, however, think that they should make decisions against their considered understanding of what the Constitution and legal precedent argue for, solely because the majority of the population would disagree with them (assuming that that is true).

I also don't think international law and/or the laws and social norms of other nations need be *excluded* from consideration when you're trying to get an understanding of what "cruel and unusual" means in a particular context.

In the excerpt that bc provides, Koh is not requiring that justices search the world for insight. He is arguing that Scalia's dicta *prohibiting* foreign opinion be considered non-binding.

In other words, an attorney should be able to come before the court and argue that, since we are the only nation with a legal system and historical heritage like ours that executes the mentally infirm, and since the only other nations that do so are nations whose human rights records we generally detest, we may wish to consider that it is cruel and unusual punishment.

I don't see a good reason to *exclude* that argument. Even if the majority of people who live in this country disagree with it.

To your "it cuts both ways" point, yes, I agree, and folks of all political opinions have had to, and continue to, live with decisions they find objectionable.


Carleton:

Harlan's point is not against separate but equal- it is against using 'separate but equal' to produce or continue unequal treatment.

I quoted Harlan's dissent and pointed out that he did not say that the government must be colorblind,

I thought it said colorblind and did a search but didn't find it. That was because it was hyphenated:

Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.

Amen.

Sorry, I don't read Harlan as you do. Maybe that's because my wife and kids are related.

sapient:

Now, why in the world would he have cared about what people throughout the world may have thought?

After writing the above, I see that you saw the color-blind too. As for this comment, it is important to note that Harlan did NOT say: "my opinion today is supported by the evolving standards of decency demonstrated by friends of liberty throughout the world interpreting the 14thA as I just did." That is the difference. But point noted (as point noted on Blackstone).

And I think it is different when a question has already been decided and the court turns to popular international opinion to decide whether to change the answer.

But on the words of the amendments alone, and certainly according to most people's views at that time,

I really can't respond to this. I know others have looked at the legislative history and find support for Harlan's position. Do you have any specific provision of the legislative history to point to, or are you simply looking at the judicial opinions (civil rights cases, slaughter house cases, etc.)?

bc, As the 14th Amendment is not a statute, legislative history wouldn't be relevant, especially since the Amendment was a measure drafted by the winners of the Civil War, imposed on the South and ratified by the Southern states under duress. The Union army wasn't integrated, was it? Nor was the United States Army following the Civil War. Although certainly there were white abolitionists who had a long tradition of being against racism, I don't think there was a huge movement by the majority, even in the North, to welcome blacks into white society. Since most of the black population in the country lived in the South, I find it hard to believe that Harlan's view was in the mainstream, particularly among people who lived in an area where it would have been relevant, and of course the court decisions that you mention (and those cited by the majority in Plessy) indicated that his view wasn't in the mainstream. I'm not sure what "others" you're referring to who've "looked at the legislative history", but I'd be interested to read whatever you're talking about.

Sebatsien--what is your evidence that the American public strongly supports the execution of adolescents? Your debate is premised on popular and legislative support for the death penalty, but of course (with the possible exception of JPS) no member of the current Court believes that the death penalty is always unconstitutional as applied to 1st degree murder. It is far less obvious that a majority of the American public is strongly committed to executing adolescents; it's certainly strange, given your assertions, that it didn't happen more often when it was legal.

"The Union army wasn't integrated, was it?"

It had lots of black units, so it was integrated in a broad sense. It wasn't integrated on a unit level.

[...] By the end of the Civil War, roughly 179,000 black men (10% of the Union Army) served as soldiers in the U.S. Army and another 19,000 served in the Navy. Nearly 40,000 black soldiers died over the course of the war—30,000 of infection or disease. Black soldiers served in artillery and infantry and performed all noncombat support functions that sustain an army, as well. Black carpenters, chaplains, cooks, guards, laborers, nurses, scouts, spies, steamboat pilots, surgeons, and teamsters also contributed to the war cause. There were nearly 80 black commissioned officers.

Yes, Gary - thanks for clarifying. I knew that there were black regiments (and black soldiers in every war) but the military wasn't integrated until Truman.

"it's certainly strange, given your assertions, that it didn't happen more often when it was legal."

Why would you think so? The number of 17-year old 1st degree murderers has never been amazingly high. The percentage of murderers who get the death penalty is very low. That alone would explain most of it. Add further that the number of 17 year olds who apparently just murdered someone for the fun of it--planning it before and bragging about it afterwards, is fairly low and I think we have a good explanation. I would suspect that for the most part juries are willing to give teenagers a bit more room, but that even that only goes so far.

And in any case, there is no evidence whatsoever for an 'evolving standard of decency' that took place between 1989 (Stanford case) and 2005. If anything, the evidence points to an evolving standard of decency that ALLOWED for execution of people who murder at age 17--there were more states passing such laws right up to the time of the ruling.

The Supreme Court just made it up. Which since I read your blog, I know you are well aware of.

bc,
I'm sorry, but I have to ask. Is there some explanation for

Sorry, I don't read Harlan as you do. Maybe that's because my wife and kids are related.

I haven't been able to follow the 'yes it's colorblind, no it's not' discussion, so can you point me to why I shouldn't take this comment as an incredibly tasteless insult?

I assumed he meant they were related to Harlan, and so he gives Harlan a positive read.

I am not sure what the insult would be...in what context would someone's wife and kids not being related be an insult? Adoption and stepkids are not generally considered insulting.

lj:

can you point me to why I shouldn't take this comment as an incredibly tasteless insult?

Uh, oops, no offense intended. It's just that my wife's maiden name is Harlan. I was saying that I may tend to over read Harlan and impute wisdom and enlightenment beyond his words simply in my excitement to be somewhat related to the man. Not that my family possesses special interpretive powers because of the gene pool. Is that what you meant? Sorry!

The Koh controversy is a result of the Federalist Society, a refuge of the Reagan revolution that began the descent that culminated in the legal Hell of the Bush administration. A judiciary made up of the Rehnquist, Scalia, Thomas, Roberts, Alito ilk is the nightmare of people who value the protection of human dignity (for people who have emerged from the womb), equal rights under the law, freedom of expression, reproductive rights, and international diplomacy over belligerence. It's really too bad that these people seem to have a permanent foothold in discussions about American jurisprudence, especially after their candidate, George W. Bush, corrupted the Justice Department, made a mockery of federal regulatory agencies, and used the Constitution as... well, I won't say it.

Just as Republicans want to use the judicial system to delay (an ethical violation) the entrance of Al Franken into the Senate, and obstructed record numbers of judicial appointments in the Clinton administration (despite their subsequent love affair with Executive prerogative), they now want to set the stage to obstruct the appointment of Obama's cabinet's staff.

Some say this is about the torture memos. I wish they'd just release them, then investigate, try and jail these people before they start another war. And I'm worried about a civil war this time, the way they're going on.

If anything, the evidence points to an evolving standard of decency that ALLOWED for execution of people who murder at age 17--there were more states passing such laws right up to the time of the ruling.

The Supreme Court just made it up.

Made what up? Was there no argument against executing minors before the SCOTUS took the issue up? How does your first statement lead to the second?

Is the Supreme Court obliged to rule based on whatever laws "more states" pass?

What if "more states" pass crappy laws?

Is there no room for the SCOTUS to *lead* in judicial interpretation?

Maybe the states that passed laws allowing the execution of minors were f***ing wrong.

His point is that the USSC had ruled on this exact matter 10 years earlier, allowing minor execution. During the 10 years, more states were in the process of allowing minor executions. Despite this, the Court said that the standards of decency had evolved.

What the Court made up was that in the intervening years, there was a change of attitudes regarding execution of minors among Americans. The evidence of that does not exist.

I happen to agree that the evidence that much or anything had changed in the intervening years is very weak. Much more likely is that the majority simply believed that the prior holding was wrong at the time -- and had that decision come out the other way it would not have been obviously "countermajoritarian." (I would also have to say that of all the many "countermajoritarian" outcome generated by American political system -- most of them not by the courts -- the possibility that one adolescent or so per decade will be put in prison for life rather than executed is one of the more trivial.)

I agree that the USSC made the mistake on the first case, not the second. But that does not excuse the reasoning of the second. It would have been much better and clearer to say that the Court was wrong the first time, rather than make up stuff.

Thanks, bc, and sorry that I read malice into that. It really surprised me coming from you, so I'm sorry if my comment came off as accusatory.

Oh, sorry jrudkis, didn't mean to ignore you. As I said, I wasn't following the conversation closely, and to say that your wife isn't the mother of your children is, absent any actual knowledge of someone's situation, seems way harsh. Again, I really didn't glom on to the fact that there was a Harlan appreciation vibe going on, sorry I missed that.

What the Court made up was that in the intervening years, there was a change of attitudes regarding execution of minors among Americans. The evidence of that does not exist.

Thank you for the clarification. I understand Seb's comment better now.

Thanks also for everyone's patience with my lack of knowledge of the case law.

I guess I have a few comments here.

First, with regard to juvenile executions, the US was not merely behind the curve with reference to evolving standards of decency. We were more or less a pariah state. See here for an overview.

So that is the broader context in which the discussion of whether it is permissible to consider customary international law occurs, at least with regard to juvenile execution.

There are at least two questions here. The first is whether the justices must be limited to considering domestic opinion ONLY when ruling on matters of judgement. The other is whether they must respect, and not exceed, domestic opinion when doing so, in other words the question of "counter-majoritarian" rulings.

Second question first. To insist that the SCOTUS never go against majority sentiment in any ruling requiring actual judgement -- in other words, any case where the proper ruling was not obvious from the Constitution and case law -- means that they can never exercise independent moral judgement at all. Their responsibility is limited, more or less, to being smart and careful readers.

Regarding the first question, I think there are times when ignoring the legal and moral sense of the rest of the world, whether expressed in customary law, treaties, or whatever, amounts to sticking your head in the sand. In the case of juvenile execution, as an example, the justices would not only have to not consider world opinion, they would have to willfully and deliberately ignore it.

Again, this seems to be a demand that they suspend any and all independent moral judgement and act as more or less purely mechanical readers and appliers of fact to text.

I would not welcome a court where the justices were allowed free reign to impose their personal preferences on the rest of us. But I don't see anyone calling for that. "Consider customary international law" is not the same as "stick your finger in the wind".

And sometimes the majority is wrong.

lj: Now I see what you meant! lol! No, I wasn't hurling a "your mother wears combat boots" at whomever I was responding to, just stating that my wife and kids are related to Harlan.

Russell:

Made what up? Was there no argument against executing minors before the SCOTUS took the issue up? How does your first statement lead to the second?

Is the Supreme Court obliged to rule based on whatever laws "more states" pass?

What if "more states" pass crappy laws?

Is there no room for the SCOTUS to *lead* in judicial interpretation?

I don't think you understand what happend. In 1989 the Supreme Court of the United States ruled that executing someone who committed first degree murder in their late teens could be executed without violating the 8th amendment.

In 2005 the Supreme Court ruled exactly the opposite, citing "the evolving
standards of decency that mark the progress of a maturing society".

The evidence for that is astonishingly weak. Four states had abandoned the juvenile death penalty during that time and four states had considered death penalty statutes which didn't specify age and had chosen to allow the death penalty for 16-18 year olds, with additional states considering it at the time of the ruling. Kennedy repeatedly spoke of a national consensus against the execution of juveniles--which is ridiculous in that context (and is frankly ridiculous full stop. There is no such consensus for any normal definition of the word.)

No national consensus had emerged between 1989 and 2005 on that issue. He made it up.

Scott:
"I happen to agree that the evidence that much or anything had changed in the intervening years is very weak. Much more likely is that the majority simply believed that the prior holding was wrong at the time "

Argh. That is exactly the opposite of comforting. Essentially you are suggesting not only that the majority on the Court lied about the consensus, but that they lied about their reasoning in general. Which, if true, really doesn't say anything good about the legitimacy of how judicial review currently functions.

Now as it happens, I agree with you. I think the Court pretty much decided "WE personally believe that this is wrong, so for no actual legal reason whatsoever we will set aside the result of the political process and substitute our personal judgment." Now of course if you were designing a political system you probably wouldn't say "Hmmm, lets have legislatures, but we'll make lifetime appointments of 9 people to be able to just veto it (without a 2/3 overrule possibility)" so they had to engage in handwaving.

But if you are suggesting that you think that is what actually happened, don't you think that should cause a little bit of consternation about that process? Even if you like the outcome on this case?


I don't think you understand what happend

Quite so. jrudkis filled me, thanks to you also for doing the same.

I've made a further reply a couple of comments up. If you care to comment I'd be interested in your thoughts.

There are at least two questions here. The first is whether the justices must be limited to considering domestic opinion ONLY when ruling on matters of judgement. The other is whether they must respect, and not exceed, domestic opinion when doing so, in other words the question of "counter-majoritarian" rulings. Second question first. To insist that the SCOTUS never go against majority sentiment in any ruling requiring actual judgement -- in other words, any case where the proper ruling was not obvious from the Constitution and case law -- means that they can never exercise independent moral judgement at all. Their responsibility is limited, more or less, to being smart and careful readers.
I’m not insisting that the Court NEVER has a counter-majoritarian function. I’m saying that when it uses an evolving moral consensus as a rationale, that is not a counter-majoritarian function. An evolving consensus is, by definition, not counter-majoritarian.

I would however have no problem with the idea that for the most part they are not intended to exercise independent moral judgment. They don’t have some sort of general counter-majoritarian function. A lot of people seem to think that they do, but that isn’t how it is supposed to work. They are empowered to act against the majority only when the will of the majority, as expressed by legislatures, is against the Constitution. That is not a general license to enact the personal moral beliefs of the judges. In fact, it isn’t obvious that it is a license to enact the personal moral beliefs of the judges even when interpreting vague clauses.

So back to the 8th amendment.. the justices have said time and time again that it is to be judged by the contemporary moral standards of our society, not historic ones. I’m not sure if this is obviously correct, but that is what they say. That is not a counter-majoritarian function. It might act in a counter-majoritarian fashion on the state level if there is a clear consensus against a practice and Georgia chose to ignore it. But as it happens, there is no evidence of a consensus against the death penalty for murderers who kill at age 17. There is some evidence that the matter is controversial, but none that there is a consensus on one side of the question or the other.

Despite that, Kennedy repeats again and again that there is.

Regarding the first question, I think there are times when ignoring the legal and moral sense of the rest of the world, whether expressed in customary law, treaties, or whatever, amounts to sticking your head in the sand. In the case of juvenile execution, as an example, the justices would not only have to not consider world opinion, they would have to willfully and deliberately ignore it.

Well the ‘legal’ and ‘moral’ senses of the rest of the world shouldn’t be treated as just one thing. For example the ‘legal’ sense of Europe appears to be against the death penalty (as expressed by their laws). The ‘moral’ sense of Europoe (as expressed by a majority of its people when asked) is not against the death penalty, not in Europe as a whole, nor in most of the countries considered individually.

And again, this is a kind of cherry picking. The United States is singular in how far it takes ideas about the freedom of speech and of the press. Yet I know almost no one in the United States who would think it a great idea to limit our understanding of freedom of the speech and of the press on that basis. That kind of thing is what makes the appeals to international law look like an exercise of power in the culture wars more than an honorable exercise of judicial interpretation.

The court in the 2005 Roper case did not merely decide the case on changing national trends; it stated that the previous Stanford case was wrongly decided in that the court in Stanford didn't consider states that had banned the death penalty altogether. Basically it cited a counting error in Stanford.

Most importantly, the Court in Roper found that the two purposes for having a death penalty, retribution and deterrence, were not served when applying it to youth under the age of 18. "Retribution is not proportional if the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity," Kennedy stated, and found that there was no evidence that the death penalty has a deterrent effect on juveniles.

In other words, not only did it say that the Stanford case was decided using erroneous data, but it used Atkins to support the conclusion that it was essential to consider the average capacity of the defendant.

It was only then that the court even mentioned our embarrassing place among other nations in executing minors.

Finally, Stanford was a plurality opinion with a dissenting opinion joined by four justices. Those kind of opinions don't stand the test of time anyway, so why does anyone object that the court overruled it? Many of the opinions from the last 20 years will be looked at again for that very reason until there is some intellectual consensus on the court.

I don’t agree with your interpretation of what Kennedy actually wrote, nor with the counting argument on its own merits.

First, he repeatedly stressed the evolving consensus. It appears all over the place in his opinion. This suggests that the *change* is very important. Not just that the previous justices had counted wrong.

Second, the culpability and blameworthiness argument is very weak in the juvenile case. The nationwide trend in age culpability for serious is crimes (normally as expressed by choosing to try late teens as adults rather than through the juvenile system) has been to increasingly allow them to be tried as adults at lower and lower ages. If you’re counting an age-culpability trend, Kennedy has the trend exactly wrong. This is true even in non-death penalty states where we can see that imposition of the maximum murder penalty available in those states used for 16, 17 and 18 year olds (and younger in fact). Using the maximum available penalty in any particular jurisdiction argues directly against the idea that there is a national consensus that the culpability of 16, 17 and 18 year olds have significant diminished blameworthiness.

So if counted properly, the state trend is toward the availability of full adult responsibility for 16, 17 and 18 year olds rather than against it.

Third, Kennedy *stated* all sorts of things, but to say that he *found* no evidence that the death penalty has a deterrent effect isn’t true in any scientific sense. The deterrent effect of the death penalty is contested, but recent analysis has suggested that it indeed has a deterrent effect. And hanging your hat on “on juveniles” seems a bit much. That would be a hyper-narrow slice of data to try to get. Given the demonstrated deterrent effect of the death penalty, it most certainly has not been shown that juveniles are specially exempted from that effect. A legislature could certainly Constitutionally act from the point of view that there was absent strong evidence to the contrary.

Of interest might be the ScotusWiki on the upcoming Kennedy v. Louisana case.

We grow into our Constitution. It took 100 years to realize, in Loving, that state laws restricting interracial marriage had been prohibited in 1868. Some enlightened folks saw the scope of the amendment much earlier -- Harlan, for example, or, even earlier, the judge who ruled for the petitioner in United States ex rel. Standing Bear v. Crook.

Link got stripped out. It is

http://www.scotuswiki.com/index.php?title=Kennedy_v._Louisiana

Reading the discussion of the oral arguments is quite interesting in light of the discussion here of evolving consensus.

it's hard to understand this as anything other than extreme ideological nationalism.

There's always the possibility that the whole thing is a cheap political stunt.

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