by Matt Barr

We dissent

On its face, this may sound like the typical stuff of Supreme Court decisions. It is not. In fact, the Court has, at least as far as the death penalty is concerned, abolished the traditional mechanism for constitutional amendments by act of state legislatures embodied in Article V.

--The Baseball Crank

[I]sn't it interesting that the twelve jurors in this case who recommended the death penalty were part of the apparent "anti-consensus?"

--Ex Post

DEMOCRACY. CANCELLED.

--PrestoPundit

[I]f we're liberalizing U.S. law from the bench, stare decisis is yesterday's news. Criticize Roe v. Wade as a judicial abomination, on the other hand, and you can't even get seat on a circuit court.

--Vote For Judges

Aside from ignoring the voice of the people through representative democracy, and instead relying on their own beliefs as well as international opinion (something the Court won't do with abortion), the Court's opinion also fails to chastise the Supreme Court of Missouri for its failure to follow binding U.S. Supreme Court precedent.

--In the Agora

I'm not a big fan of capital punishment for minors but find it incomprehensible that it could suddenly be unconstitutional. The 8th Amendment was ratified in 1791. The fact that 19 states still allowed youth executions until this morning belies the argument that the citizenry considers the practice cruel.

--Outside the Beltway

Like it or not: there really is no constitutional basis for barring the various states from making their own laws on this subject. So, really, what we have here, is the idea that five individuals can supplant the opinions of the citizens of nineteen states with their own for no other reason than (ultimately) that they object to the practice.

--Poliblog

It would be one thing to say, you know, the Framers, as we know from the recently discovered cache of Madison's letters, did not think cutting off someone's ears was particularly cruel as punishment goes. It was a tough time, yada, yada. Nonetheless, we are going to rule that otosection is banned by the 8th Amendment. We say it's cruel, and that's that, and oh, by the way, here's the best reasoning that a bright young thing who graduated from law school 18 months ago can up with that that in fact is how we must rule. Fine. I don't care. By all means, let's not cut off ears, even if the Framers thought it was OK. But what the court does when they make things up, more often than not, is make up stupid laws. If they are going to just make things up, couldn't they make up smart things, practical things?

--The Right Coast

So the Court seems to have decided that the definition of "cruel and unusual punishment" is determined, quite literally, by the views of five current members of the Court. Justice Scalia, predictably, goes off on this, asking rhetorically, "By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?" I'm no Scalia fan, but it's hard to argue with that one. The Court's approach does not strike me as a terribly reliable way to build up a consistent body of jurisprudence, nor does it strike me as what John Marshall had in mind when he famously declared in 1803 that "It is emphatically the province and duty of the judicial department to say what the law is."

--Blue Mass. Group

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