Roper v. Simmons: Difference between revisions

A 1988 Supreme Court decision, ''[[Thompson v. Oklahoma]]'', barred execution of offenders under the age of 16.<ref>{{ussc|name=Thompson v. Oklahoma|volume=487|page=815|year=1988}}.</ref> In 1989, another case, ''[[Stanford v. Kentucky]],'' upheld the possibility of capital punishment for offenders who were 16 or 17 years old when they committed the capital offense.<ref name="Stanford">{{ussc|name=Stanford v. Kentucky|volume=492|page=361|pin=|year=1989}}.</ref> The same day in 1989, the Supreme Court ruled in ''[[Penry v. Lynaugh]]'' that it was permissible to execute the intellectually disabled.<ref>{{ussc|name=Penry v. Lynaugh|492|302|1989}}.</ref> However, in 2002, that decision was overruled in ''[[Atkins v. Virginia]],'' where the Court held that evolving standards of decency had made the execution of the mentally retardeddisabled "cruel and unusual punishment" and thus unconstitutional.<ref name="Atkins" />

Scalia also attacked the majority opinion as being fundamentally antidemocratic. His dissent cited a passage from ''[[The Federalist Papers]]'' in arguing that the role of the judiciary in the constitutional scheme is to interpret the law as formulated in democratically selected legislatures. He argued that the Court exists to rule on what the law ''says'', not what it ''should'' say, and that it is for the ''legislature'', acting in the manner prescribed in [[Article Five of the United States Constitution|Article V]] of the Constitution to offer amendments to the Constitution in light of the evolving standard of decency, not for the ''Court'' to arbitrarily make what he considered ''de facto'' amendments. He challenged the right of unelected lawyers to discern moral values and to impose them on the people in the name of flexible readings of the constitutional text.

The majority ruling highlighted several controversies in the field of constitutional [[jurisprudence]]. The first is the use of the concept of an evolving "national consensus" to allow for the re-interpretation of previous rulings. In this case, the evolving consensus was influenced by behavioral and other research studies, such as those presented to the court in an [[amicus brief]] by the [[American Psychological Association]].<ref>{{cite web |url=http://www.apa.org/about/offices/ogc/amicus/roper.pdf|title=Roper v. Simmons |work=PsychLAW |publisher=American Psychological Association |access-date=2010-04-01}}</ref> What constitutes evidence for such a consensus—and from where the judicial branch derives its authority to determine it and implement it into law, a function constitutionally vested in the legislative branch, especially in the case of capital punishment—is unclear at this point.{{citation needed|date=September 2022}} In ''Roper v. Simmons'' the majority cited the abolishment of juvenile capital punishment in 30 states (18 of the 38 allowing capital punishment) as evidence of such a consensus. In ''[[Atkins v. Virginia]]'',<ref name=Atkins/> it was the "consensus" of the 30 states (18 of 38 allowing capital punishment) that had banned execution of the mildly retardeddisabled.

Another controversy is the role of foreign laws and norms in the interpretation of U.S. law. In 2004 [[United States House of Representatives|Representative]] [[Tom Feeney]] (FL-R-FL) introduced a non-binding resolution instructing the judiciary to ignore foreign precedent when making their rulings: "This resolution advises the courts they are no longer engaging in 'good behavior' in the meaning of the Constitution and they may subject themselves to the ultimate remedy, which would be impeachment."<ref>[http://www.nbcnews.com/id/4506232 "A flap over foreign matter at the Supreme Court"] - NBC News coverage of Feeney resolution</ref>