Thursday, March 03, 2005

There's no Green Mile in Amish country

Not to belabor the consideration of Roper v. Simmons, the decision in which the Supreme Court struck down the juvenile death penalty Tuesday, but Justice Antonin Scalia's vigorous dissent merits a follow-up post. The dissent, which begins on Page 64 of this document, is particularly notable for the way in which it attacks the majority's decision with a blend of logical precision and enraged table-pounding.

Scalia's dissent, which slams the Court's decision as little more than "the subjective views of five [m]embers of this Court and like-minded foreigners," begins well. Scalia, the Court's foremost originalist, slices and dices the justices' claim of an emerging national consensus that the execution of juveniles is cruel and unusual punishment by noting that only four additional states have passed laws against executing 16- and 17-year-olds since the Court last weighed in on the subject 15 years ago in Stanford v. Kentucky. In addition, he points out that more than half of the death-penalty states, including Alabama, still allowed executions of murderers who committed their crimes at age 16 or 17.

Scalia also blasts the majority for departing from precedent after less than two decades. His abiding respect for stare decisis and an immutable Constitution, while admirable, rings a little hollow when you consider that Scalia provided the decisive fifth vote in 1996's Seminole Tribe of Florida v. Florida, which overruled a close decision about states' Eleventh Amendment immunity from lawsuits that the Court made a mere seven years earlier.

Then there's the table-pounding, and is it ever an entertaining read. Scalia writes that the majority, in citing loads of scientific evidence that juveniles are less capable than adults of making rational decisions and are therefore less culpable, chose "to look over the heads of the crowd and pick out its friends." He ends by complaining, with good reason, that the majority didn't criticize the lower court for "its flagrant disregard of our precedent."

But nothing compares to Scalia's masterstroke on Page 67: the invocation of the Amish. That's right, the Amish: the people who huddle up in their own little old-school farm communities and raise barns and drive horse-drawn carriages. Those Amish.

Scalia argues, incredibly, that in counting the states that disagree with executing juveniles, the Court is wrong to include states that ban executions altogether. His reasoning? Glad you asked: "Consulting [s]tates that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don't like it, but that sheds no light whatsoever on the point at issue."

So is the death penalty more like a light bulb or a butter churn?

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