Tuesday, March 08, 2005

George Will on Justice Kennedy

George Will on Justice Kennedy's opinion on the death penalty for minors:

While discussing America's "evolving standards of decency," Kennedy announces: "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty." Why is that proper when construing the U.S. Constitution? He is remarkably unclear about that. He says two international conventions forbid executions of persons who committed their crimes as juveniles. That, he thinks, somehow illuminates the meaning of the Eighth Amendment.

Kennedy evidently considers it unimportant that the United States attached to one of the conventions language reserving the right "to impose capital punishment . . . for crimes committed by persons below eighteen years of age." The United States never ratified the other convention Kennedy cites. Kennedy the roving moralist sniffily disapproves of that nonratification as evidence that America is committing the cardinal sin of being out of step with "the world community."
Regardless of your feelings on the decision reached, Justice Kennedy's use of "international opinion" in reaching it was inappropriate. Using French law as precedent is no different than using Saudi Arabian law. And as for "international opinion" back in the 30's the world was sliding towards fascism, in the 60's it was communism. Do we really want that as the basis for Supreme Court decisions?

Read the whole thing here: Wrong on All Counts (washingtonpost.com)