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March 14, 2005

Intrigued by the Roper bashing

Jeffrey Rosen has this essay in the The New Republic on the Supreme Court's Roper decision with this provocative openning:

The morning after the Supreme Court struck down the juvenile death penalty as a form of cruel and unusual punishment in Roper v. Simmons, the reaction in the Supreme Court press room was unusually scathing.  A liberal journalist lamented that, ever since Justice Anthony Kennedy, who wrote the 5-4 opinion for the Court, styled himself as a judicial statesman, he has become insufferable, out of control, and "deserves to be slapped." A conservative journalist chimed in that the decision was embarrassing, because the justices had imposed their own moral preferences on the country without attempting to convince those who disagreed.

The consensus among our ideologically diverse little band was revealing.  Roper v. Simmons is indeed embarrassing....

Though the bulk of Rosen's piece is about the Supreme Court's consideration of international opinion in its decisions, it confirms (and contributes to) my general impression that Roper has been among the most critically assailed Supreme Court opinions in recent memory. 

Rather than join the critical discussion of Roper, I am interested in a critical discussion of why the discussion of Roper has been so critical.  I am drawn to this question principally because Roper, at least on its merits, is arguably not all that much different than the Supreme Court's 2002 decision in Atkins which found a constitutional prohibition on the execution of persons who are mentally retarded.  I do not recall Atkins being treated harshly by commentators.

There are tangible doctrinal differences between Roper and Atkins which arguably could explain their different receptions.  But I am inclined to think other factors besides purely legal considerations explain the distinct reactions to Roper and Atkins.  In particular, as the Rosen piece suggests, I sense that bashing Justice Kennedy (the author of Roper) and bashing the considerations of foreign authorities is far more in vogue these days than was bashing Justice Stevens (the author of Atkins) and bashing the considerations of foreign authorities in 2002.

March 14, 2005 at 02:09 PM | Permalink


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Fights in bars rarely start with a haymaker.

SCOTUS tested the waters of expanding their power through an "internationalization" of the Constitution in 2002. The reaction WAS negative, at least in conservative circles (the Federalist Society ran a number of critical seminars, for example). When the Republicans trounced the Democrats last November, one would have expected the old adage, "the Justices know how to read election returns," to have chastened the Olympic Five in Roper. Instead, they took the chance to solidify their power grab (or, charitably, they truly don't know or care that their decision stinks in the Red States even though it might smell good in Paris and Berlin). Like a fight in a bar, a little push has prompted a donnybrook, with small-d democrats, including many liberals like J. Rosen, joining the previous conservative umbrage at the anti-democratic forces in the High Court.

I fear that it will get worse before it gets better. Even though I'm a Democrat, I think that "nuking" the Senate fillibusters of conservative judges might help, but I just don't know.


Posted by: Mark | Mar 14, 2005 5:33:10 PM

I am a parent who knows some young
people in the Federal system and I have
a question:

Do you know if the Supreme Court has
granted cert on any cases involving due
process, plain error, or retroactivity
on lst time 2255's.

Posted by: Shirley | Mar 14, 2005 5:40:53 PM

Isn't the Roper-bashing really Kennedy-bashing, and isn't the Kennedy-bashing really all about pushing a more conservative prospect for Chief when an opening arises, which the Right apparently suspects will be soon?

Posted by: Peter G | Mar 14, 2005 8:57:35 PM

Many reasons why Roper is more controversial than Atkins, but here are three:

1. Politics.

A. The Supreme Court is in play this year.

B. The far right considers Kennedy a traitor. They've never forgiven him for Planned Parenthood v. Casey and Lawrence v. Texas.

C. Each time Kennedy sides with the "liberals," he reminds them he isn't Bork.

2. The intellectual bankruptcy of the opinion. Atkins was at least defensible. Roper is pure ipse dixit. Plus, Roper openly embraces two concepts the far right deplores, the "living constitution" and international law.

3. The image of angry black teens with guns haunts white America. The mentally retarded don't generate the same visceral fear.

Posted by: Anon | Mar 15, 2005 2:24:16 PM

Politics are certainly at play, but what struck me about the opinion (as a conservative death penalty opponent) was its patently antidemocratic tilt. The entire premise of an emerging national consensus, if true, would be self-executing (so to speak). That is, if such a consensus exists, why do we need a 5-4 court (itself evidence of NO consensus) to impose it for us?

Like many, I'm happy to see the death penalty whittled away, but not like this.

Posted by: Steve | Mar 15, 2005 3:49:35 PM

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