The most exciting court decision the SCOTUS has handed down all term. I'm most interested, however, in Scalia's dissent -- because it's uncontroversial that killing young people seems to be at least aesthetically repulsive, so why would someone defend it?
I highly recommend the full opinion and dissent here (don't worry, it's a perfectly legit PDF), but here's an excerpt to chew on. Scalia makes a fascinating argument ... lots of cool psychological and moral implications. Tell me what you think at diana(dot)feygin(at)yale(dot)edu.
...[T]he real force driving today ’s decision is not the actions of four state legislatures, but the Court ’s ‘own judgment’ that murderers younger than 18 can never be as morally culpable as older counterparts…. The Court claims that this usurpation of the role of moral arbiter is simply a “retur[n] to the rul[e] established in decisions predating Stanford. That supposed rule — which is reflected solely in dicta and never once in a holding that purports to supplant the consensus of the American people with the Justices’ views —was repudiated in Stanford for the very good reason that it has no foundation in law or logic. If the Eighth Amendment set forth an ordinary rule of law, it would indeed be the role of this Court to say what the law is. But the Court having pronounced that the Eighth Amendment is an ever-changing reflection of ‘the evolving standards of decency’ of our society, it makes no sense for the Justices then to prescribe those standards rather than discern them from the practices of our people. On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?
The reason for insistence on legislative primacy is obvious and fundamental:“‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’” Gregg v. Georgia, 428 U.S.153, 175 –176 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.) (quoting Furman v. Georgia, 408 U.S.238, 383 (1972)(Burger, C.J., dissenting)). For a similar reason we have, in our determination of society ’s moral standards, consulted the practices of sentencing juries: Juries “‘maintain a link between contemporary community values and the penal system ’” that this Court cannot claim for itself. ... Today ’s opinion provides a perfect example of why judges are ill equipped to make the type of legislative judgments the Court insists on making here. To support its opinion that States should be prohibited from imposing the death penalty on anyone who committed murder before age 18, the Court looks to scientific and sociological studies, picking and choosing those that support its position. It never explains why those particular studies are methodologically sound; none was ever entered into evidence or tested in an adversarial proceeding. ...
In other words, all the Court has done today, to borrow from another context, is to look over the heads of the crowd and pick out its friends…. We need not look far to find studies contradicting the Court ’s conclusions. As petitioner points out, the American Psychological Association (APA), which claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court. In its brief in Hodgson v. Minnesota, 497 U.S. 417 (1990), the APA found a “rich body of research ”showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement. Brief for APA as Amicus Curiae, O.T.1989, No.88 –805 etc., p.18. The APA brief, citing psychology treatises and studies too numerous to list here, asserted:“[B]y middle adolescence (age 14 –15)young people develop abilities similar to adults in reasoning about moral dilemmas, understanding social rules and laws, [and ]reasoning about interpersonal relationships and interpersonal problems.” Given the nuances of scientific methodology and conflicting views, courts — which can only consider the limited evidence on the record before them — are ill equipped to determine which view of science is the right one. Legislatures “are better qualified to weigh and ‘evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.’” McCleskey v.Kemp, 481 U.S.279, 319 (1987)(quoting Gregg, supra, at 186).
Even putting aside questions of methodology, the studies cited by the Court offer scant support for a categorical prohibition of the death penalty for murderers under 18. At most, these studies conclude that, on average, or in most cases, persons under 18 are unable to take moral responsibility for their actions. Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes.
Moreover, the cited studies describe only adolescents who engage in risky or antisocial behavior, as many young people do. Murder, however, is more than just risky or antisocial behavior. It is entirely consistent to believe that young people often act impetuously and lack judgment, but, at the same time, to believe that those who commit premeditated murder are — at least sometimes — just as culpable as adults. Christopher Simmons, who was only seven months shy of his 18th birthday when he murdered Shirley Crook, described to his friends beforehand —“[i]n chilling, callous terms, ” as the Court puts it, , ante , at 1 — the murder he planned to commit. He then broke into the home of an innocent woman, bound her with duct tape and electrical wire, and threw her off a bridge alive and conscious ... In their amici brief, the States of Alabama, Delaware, Oklahoma, Texas, Utah, and Virginia offer additional examples of murders committed by individuals under 18 that involve truly monstrous acts. In Alabama, two 17-year-olds, one 16-year-old, and one 19-year-old picked up a female hitchhiker, threw bottles at her, and kicked and stomped her for approximately 30 minutes until she died. They then sexually assaulted her lifeless body and, when they were finished, threw her body off a cliff. They later returned to the crime scene to mutilate her corpse ... Other examples in the brief are equally shocking. Though these cases are assuredly the exception rather than the rule, the studies the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way — by determining that some murders are not just the acts of happy-go-lucky teenagers, but heinous crimes deserving of death...
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