SIMMONS V. ROPER
SUCKS, PART II. Today's Wall Street Journal
has an op-ed by Prof. Robert F. Nagel on the U.S. Supreme Court's recent decision, entitled "Supreme Chaos."
Nagel is an outstanding constitutional law scholar, and the author of The Implosion of American Federalism
--a wonderful book of penetrating, scholarly insight. I highly recommend his work.
In the op-ed, Nagel begins by discussing some of the general features of Justice Anthony Kennedy's opinion for the majority. However, Nagel goes on to describe how the Roper
decision is something of a departure from recent decisions wherein the majority criticizes the other branches of government and the public at large for daring to disagree with their point of view on contentious issues. In particular, Justice Kennedy's opinion did not even discuss a Supreme Court of Missouri decision that was at odds with an earlier US Supreme Court ruling. As Nagel goes on to state:
One possible explanation for the majority's unconcern is that it does not see defiance by a court as being anarchic to the same degree as defiance by Congress or state legislatures. After all, even the sorts of unmoored legal judgments to which Justice Scalia refers are finally subject to review by the Supreme Court. This explanation assumes that the justices hold not only an optimistic view of the inclinations of lower court judges, but also a rather heroic view of their own capacities. That is, it assumes the justices are convinced that they have the intellectual tools to control any rare judicial defiance that might occur.
Nagel proceeds to discuss the real chaos-inspiring aspect of decisions like Roper
. The justices often decide cases using broad, flowery language--while confining the actual holding of their case very narrowly. But lower courts seize upon that expansive language and the underlying logic of the more broad pronouncements of the Court. Thus do the court's decisions take on sweeping lives of their own--probably further reaching than the intent of the justices of the Court. Says Nagel:
What some members of the Court tend not to appreciate is that they are not in control of their material. The content of their opinions, once unleashed on the world, does not belong to them alone. Not only do other judges have a voice in the ultimate significance of this content, but even the justice who authors an opinion must later decide about its significance in a world altered by that opinion...
I care about the fact that 17-year-olds, like the one in Roper
, will no longer have the opportunity to receive a punishment commensurate with the nature of the crime committed. But I'm also concerned about the extent to which lower courts will use Justice Kennedy's references to international law and evolving consensuses about standards of morality to decide future cases. Its all-too-easy to arrive at a decision you really want when your jurisprudential foundation is firmly planted in mid-air. Like the late Judge Learned Hand, I am increasingly of the view that judges should not be given a blank check with the constitution. It runs contrary to the separation of powers and is also harmful to the integrity and prestige of the judicial branch itself. Not to mention the rule of law.(Downtown Seattle, WA)