by Matt Barr

Illiberal Roper

In an article available only to subscribers or persons with Nexis access, Jeffrey Rosen makes a case against Roper that's as scathing (it's entitled, "Juvenile Logic") as any conservative or libertarian might write.

[Roper]is analytically sloppy and glib in its attempt to impose an international consensus where none in fact exists. And liberals should be wary about relying too heavily on international consensus. To the degree that foreign authorities do agree about moral values in other cases involving basic rights, they tend to be far less consistently progressive than liberals assume....

Citing hotly contested psychological studies, [Mr. Justice Kennedy] announces that juveniles are less culpable than adults. But surely this is a moral as well as a psychological question, about which reasonable citizens (and reasonable scientists) disagree. Indeed, for centuries, Americans and Europeans have been at odds about precisely this moral question. "Europeans are inheritors of a canon law tradition that strictly limits the punishment of minors on the theory that minors can't form the same criminal intent as adults," says James Whitman of Yale Law School. By contrast, the English and U.S. common law tradition has taken a very different view. If Kennedy's decision were carried to its logical conclusion, it might call into question not only the juvenile death penalty, but also the substantive criminal law in many U.S. states....

Conservatives are right to fear the internationalization of the culture wars--that is, the danger that American traditions will be struck down in the name of international values. But liberals should fear this development as well. Kenneth Anderson of the Washington College of Law predicts that, in the wake of Roper, citations to international authorities "will spread throughout the U.S. judicial system like an Internet virus -- because both sides will have to assume in any litigation that it now matters." We may soon see shaky claims about a purported international consensus invoked in cases ranging from corporate litigation to free speech. And liberal values will hardly be reliable winners. As Jack Goldsmith of Harvard Law School suggests, the U.S. constitutional tradition tends to be much more libertarian and protective of rights than the European one in cases involving hate speech, defamation, abortion, and criminal procedure. If the German Constitutional Court's vision of abortion or free speech were imposed on the United States, for example, liberals would protest in the streets....

Roper is an invitation to the worst kind of judicial activism. The United States has been down this road before, during the Warren era, and liberals have only just begun to wean themselves of the urge to fight their battles in courts rather than legislatures. This time around, courts are even less likely to be predictable supporters of the values of American liberals, who will come once again to regret having succumbed to the temptations of activism.

It's a fine piece in its entirety. The reason the American left isn't outraged over the assumption of superlegislative powers by the courts is that, in the main, they agree with the results. (Many conservatives agree that the death penalty for crimes committed while a minor ought to be abolished, too, but tend to believe people ought to be persuaded, vote and pass a law.) Someday, probably sooner than later, as Rosen speculates, there will be a decision that doesn't have the dressing of a substantive result liberals agree with. You should favor procedures you're willing to live comfortably with whether you win or lose. The Roe generation of American liberals doesn't understand this -- yet.

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