Roper v. Simmons: Judicial Activism and The Juvenile Death Penalty

On January 31, as part of Catholic Advocacy Day at the General Assembly in Richmond, Virginia, I lobbied a number of Virginia state legislators to encourage them to abolish the death penalty for minors in Virginia (the law currently allows for the execution of those who are convicted of committing capital murder at the ages of 16 and 17 years old).

Given my unfavorable view of the juvenile death penalty, it is somewhat ironic that I am extremely troubled by the recent Supreme Court decision striking down the juvenile death penalty as unconstitutional. By a 5-4 vote, the Court in Roper v. Simmons held that it was cruel and unusual punishment in violation of the 8th Amendment to the U.S. Constitution to execute those who have been convicted of committing murder prior to their 18th birthday. The effect of the Roper decision was to abolish the juvenile death penalty in at least 19 states.

Catholics who are opposed to capital punishment in general, or who, like me, are opposed to the juvenile death penalty in particular, may be tempted to hail the Court’s Roper decision as a favorable development. Indeed, the U.S. Conference of Catholic Bishops on March 2 stated that it was “very encouraged that the United States Supreme Court has recognized that executing juvenile offenders is indeed cruel and unusual.” However, notwithstanding the desirable result, I would like to warn Catholics against viewing the Court’s decision in too positive a light, as the Court’s majority, in reaching its holding, relied on reasoning that could lead to outcomes that are problematic for Catholics.

First, it must be noted that what the Court did in Roper was, in my view, an abusive exercise of judicial fiat by unelected and life-tenured judges, who usurped what should be the function of the duly elected and politically accountable legislative branch of government. The majority on the Court ignored the views of the electorate on this issue and read its own policy preferences into the Constitution in order to create a constitutional right that was never there before. In doing so, the Court’s ruling flies in the face of over 200 years of 8th Amendment jurisprudence, and is at odds with the Court’s own previous ruling 15 years earlier in Stanford v. Kentucky, which held that the death penalty for minors was NOT unconstitutional. Amazingly, the Court essentially concluded, as pointed out by Justice Antonin Scalia in his dissenting opinion, “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.”

This type of activist judicial lawmaking is essentially the same thing the Court did in creating (out of whole cloth) a constitutional right to abortion in Roe v. Wade, as well as in recently striking down laws banning the practice of partial birth abortion. Those Catholics who think the Court acted properly in abolishing the juvenile death penalty in the Roper decision, should not be surprised when the Court uses that same judicial fiat to rule in a manner opposed by Catholics, such as it did in Roe and subsequent abortion-related cases.

A second cause for concern among Catholics, is the Roper Court’s continuation of the troubling recent trend in Supreme Court jurisprudence of looking to foreign legal precedents to interpret the U.S. Constitution. Specifically, the Court relied not on its own precedents in previous cases involving capital punishment and the 8th Amendment, but looked instead to European law to find that the juvenile death penalty constitutes cruel and unusual punishment. Let me repeat: the Supreme Court of the United States disregarded its previous holdings in this area of the law, and relied instead on the law of foreign nations to reach its decision.

The idea of subverting the sovereign laws of the various states of the U.S. to the political whims of elites in European capitals is troubling enough on its face. But there is an aspect beneath the surface of the Roper decision that should strike fear in the hearts of faithful Catholics. In 2003, Justice Anthony Kennedy, the author of the majority opinion in Roper, used similar reasoning – relying on the “enlightened” laws and attitudes of those in Europe – to write the opinion in Lawrence v. Texas, which established a constitutional “right” to engage in homosexual sodomy. Many legal commentators view the Lawrence opinion as merely a precursor to the Court’s eventually establishing a constitutional right to homosexual “marriage”, thereby striking down the laws of 48 states protecting marriage as a union between one man and one woman. And there are numerous other areas of the law (euthanasia, for example) where Catholics in the U.S. should be loathe to see the Court impose on our citizenry the “enlightened” views of European intellectuals and other foreign elites.

Again, I realize that many Catholics, despite the concerns I have raised, will nevertheless be tempted to rejoice at the result of the Roper ruling, as evidenced by the positive statement coming from the Bishops’ Conference. I have corresponded with other Catholics who, although troubled by the Court’s reasoning, believe that the “legal technicalities” of the Roper decision should be ignored because the result was just. I would caution Catholics, however, to keep in mind that such good ends cannot justify improper means. And, in my view, running roughshod over the rule of law, as the Roper Court has done, in order to reach a particular desired result simply cannot be justified.

In such a situation, I am reminded of the scene from A Man For All Seasons where Sir Thomas More’s protégé and future son-in-law, ironically named “Roper”, questions Sir Thomas as to whether it would be justifiable to deny the Devil due process of law in order to achieve a greater good:

Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

Sir Thomas More’s admonition to Roper should serve as a warning and a reminder to Catholics that the activist Court that sides with us in this particular instance is the same activist Court that is likely in the future (as it has in the past) to “turn round on us” and use its increasingly strident activism to decide cases contrary to our Catholic values.