Roper v. Simmons

Roper v. Simmons (2005) was a case before the Supreme Court of the United States, which ruled on March 1, 2005, that it is unconstitutional to impose capital punishment for crimes committed while under the age of 18, in a 5-4 decision.

The dissent

Both the Scalia dissent, joined by Rehnquist and Thomas, and Justice O?Connor?s separate dissent put into question whether a ?national consensus? had indeed formed among the state laws. At the time of the ruling 18 of 38 death penalty states (47%) allowed the execution of juveniles.

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However, the primary objection of the Court's two originalists, Scalia and Thomas, is not whether such a consensus has developed or not, but why that should be relevant. From an originalist perspective, the question presented by Roper v. Simmons is very different to the question the Court answer in its verdict; from an originalist perspective, the question is not "does society now frown on the execution of minors, and if it does, how can we accommodate that view?", but rather, "was the execution of a minor considered cruel and unusual at the point at which the Bill of Rights was ratified?".

Related Topics:
Originalists - Bill of Rights

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In addition, and for much the same reason, Scalia also objects in general to the Court's willingness to take guidance from foreign law in interpreting the Constitution; his dissent questions not only the relevance of foreign law, but also accuses the court of "invok alien law when it agrees with one's own thinking, and ignor it otherwise", noting that in the case of abortion U.S. laws are less restrictive than the international norm. In a roundtable discussion with Justice Breyer, at American University Law School, Scalia posed the question: "what is the criterion for whether or not to adopt foreign precedent? That it agrees with you?".

Related Topics:
Constitution - Abortion

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Scalia also attacked the majority opinion as being fundamentally anti-democratic. His dissent cites a passage from the Federalist Papers in arguing that the role of the judiciary in the constitutional scheme is to interpret the law as formulated in democratically selected legislatures. In other words, Scalia argues that the job of the court is to rule what the law says, not what the law should say, even if what the law says might be considered "wrong" when viewed in terms of an "evolving standard of decency"; it is for the legislature, acting in the manner prescribed in Article V of the U.S. Constitution, to offer amendments to the Constitution in light of the evolving standard of decency, not for the Court to arbitrarily make de facto amendments. He challenges in very strong terms the right of unelected "lawyers" to discern moral values and to impose them on the people in the name of flexible readings of the constitutional text. In general, Scalia favors the right of states to make decisions on issues such as capital punishment. This Supreme Court decision overrides those decisions made by the states.

Related Topics:
Federalist Papers - Article V

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