The Ebb And Flow Of Consensus
The Roper majority purported to ground its ruling in the nation's "evolving standards of decency," which it says have led to a "national consensus" against the execution of juvenile murderers. Even if there were such a consensus -- and there clearly is not -- there is no reason to believe that it is chiseled in granite.
But by deciding that public opinion has moved decisively on this question, then grafting that decision onto the constitution, the court has stripped lawmakers of the right to someday change their minds. Yet when has legislative support for capital punishment ever been static? As Justice Antonin Scalia notes in his dissent, it "has surged and ebbed throughout our nation's history."
In the years after World War II, for example, there was a dramatic fall-off in executions, as many states went through a phase of abolishing or restricting capital punishment. For several years beginning in 1968, in fact, executions came to a halt.
By the logic of the Roper majority, the Supreme Court could have declared back then that "evolving standards" had reached a "national consensus" in favor of eliminating the death penalty once and for all. In hindsight, we know that any such declaration would have been ludicrous -- within a few years, support for the death penalty had soared. "But had this court then declared the existence of such a consensus, and outlawed capital punishment," wrote Justice Sandra Day O'Connor in a 1988 opinion quoted by Scalia last week, "legislatures would very likely not have been able to revive it. The mistaken premise of the decision would have been frozen into constitutional law."
And so there we have it. One of the myriad flaws of the decision in Roper v. Simmons is that it forever freezes into place an alleged consensus on the juvenile death penalty (one which I would argue does not even exist). By making its decision on constitutional grounds, the issue of the existence of a national consensus is hereafter moot. Bound by stare decisis, any future court would be bound to strike down any law purporting to legalize the death penalty for juveniles, regardless of the will of the people and their representatives in government. The “evolving standards of decency” to which Justice Kennedy refers will not be allowed to evolve the other direction. In short, the position of a minority of death penalty states (a mere 47% of them) against executing 16 & 17 year olds has been incorporated into the sacred language of the Bill of Rights, and it will be virtually impossible to undo the result.