"Robed Masters"

Yesterday, Supreme Court Justice Anthony Scalia, along with Justice Thomas and Chief Justice Rehnquist, dissented in the case of Ropper v. Simmons.

Justice Anthony Kennedy's majority opinion in this case overruled the laws of 18 states that allow for the execution of minors in extreme cases of first degree murder ... this opinion also reversed a 1989 opinion by the Supreme Court that allowed states to execute those convicted of a capital crime who are over 15 years of age but under 18 years of age.

A debate over whether we should sentence minors to death in America can be placed on hold for another day.

The alarming issue I wish to discuss here is that five un-elected judges, "Robed Masters" according to Scalia, have overturned the will of the people in 18 states on this issue ... and based on what?

Kennedy cites "evidence of [a] national consensus against the death penalty for juveniles" that was not apparent in '89 ... but not in those 18 states, I'm willing to bet.

He then incredibly cites, "Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, [which] contains an express prohibition on capital punishment for crimes committed by juveniles under 18"

In other words ... if other countries don't execute juveniles, then neither should we.

In the opening remarks of his dissent, Scalia fires back:

"In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since [t]he judiciary ha[s] neither FORCE nor WILL but merely judgment. The Federalist No. 78, p. 465 (C. Rossiter ed. 1961).

But Hamilton had in mind a traditional judiciary, bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them. Id., at 471.

Bound down, indeed.

What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years not, mind you, that this Court' s decision 15 years ago was wrong, but that the Constitution has changed.

The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to the evolving standards of decency, ante, at 6 (internal quotation marks omitted), of our national society.

It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people’s laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter: "[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment" Ante, at 9 (internal quotation marks omitted).

The Court thus proclaims itself sole arbiter of our Nation's moral standards and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures.

Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.


Scalia is absolutely right ... whether you agree with Kenndy et. all or not, it should be very troubling to see these "Robed Masters" take it upon themselves to overturn the will of the people in almost half the states in the union.

You can read Scalia's opinion in full here, or Kennedy's here.