The Lichfield Group

President George W. Bush and Republican Senators should learn from Justice Anthony Kennedy’s preposterous opinion last week in Roper v. Simmons (March 1, 2005) holding unconstitutional the death penalty for loathsome murders perpetrated by juveniles younger than 18. Transforming the Supreme Court from airbrush artistry to principled reasoning in constitutional interpretation—from the rule of whim to the rule of law—will require appointments modeled after Bork, Scalia, or Thomas. Pastel versions will accomplish little or nothing.

Justice Kennedy was appointed by President Ronald Reagan after the ugly Senate defeat of Judge Robert H. Bork in 1987, the most intellectually gifted nominee in modern times. Justice Kennedy’s proponents claimed he was a Bork disciple without a gladiatorial style—a winsome conservative that liberal Democrats would confirm. In the midst of the Iran-contra debacle, President Reagan shied from a second bruising fight with a Democrat controlled Senate. Accordingly, he nominated the soft-edged Kennedy in the naive belief that he would end the Supreme Court’s chronic invention of constitutional rights every bit as much as Bork would have done.

But any fool who had scrutinized Kennedy’s confirmation testimony, for example, his flabby hedging over an unenumerated constitutional right to privacy, and his opinions as a judge on the United States Court of Appeals for the Ninth Circuit could have discerned that Kennedy was no Bork. The latter’s razor-sharp and luminous writings were the Sistine Chapels of the legal world. Kennedy’s fuzzy and undisciplined mind evoked Jackson Pollock.

The Roper opinion is the most recent proof of Kennedy’s recurring constitutional frolics. Justice Antonin Scalia writing for the High Court in Stanford v. Kentucky (1989), declared that capital punishment for juvenile offenders guilty of gruesome murders is undisturbing to the Eight Amendment’s prohibition of “cruel and unusual” punishments. He reasoned that a substantial percentage of States that imposed the death penalty declined to carve out a juvenile offender exception, thus discrediting the notion that the punishment was “unusual.” The Justice further insisted that objective criteria must be employed in interpreting the Amendment to prevent Court decisions from degenerating into idiosyncratic moral ebullitions.

Speaking for a 5-4 majority in Roper, Justice Kennedy repudiated Scalia in all his moods and tenses. The grisly facts left him unmoved. At age 17, Simmons felt a craving to commit murder for the thrill of the enterprise. He shrewdly plotted the crime by assuring friends they could “get away with it” because they were minors. Simmons and another entered the home of Shirley Crook; transported her to a railroad trestle; bound her hands and feet with electrical wire; wrapped her face in duct tape; and, threw her from the bridge, drowning her in the waters below. Simmons was as unrepentant as King Richard III, boasting to his friends that he had killed a woman “because the bitch seen my face.” In recommending the death penalty to the sentencing judge, the jury rejected Simmons’ plea that adolescence mitigated the vileness of the murder.

Justice Kennedy, however, sermonized that death for minors upset his squeamish moral conscience, which was the yardstick for interpreting the Constitution. He maintained that “evolving standards of decency that mark the progress of a maturing society” was an improvement on the Eighth Amendment which the Founding Fathers enshrined. They foolishly believed that a mature society might cherish constant in lieu of shifting standards of decency—such as horror at savage murders perpetrated by juveniles under 18.

Kennedy drew support for his constitutional interpretation from expert psychologists. Their inability to differentiate between incorrigible youths and candidates for rehabilitation underlies the professional rule forbidding psychiatrists from diagnosing any patient under 18 as afflicted with “antisocial personality disorder.” The Justice extracted from that professional ignorance a conclusion insulting to the cerebral faculties of the species: “If trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile offender under 18 as having antisocial personality disorder, we conclude that States should refrain from asking jurors to issue a far graver condemnation—that a juvenile offender merits the death penalty.” According to Kennedy, saving the life of Simmons was necessary to preserve “his potential to attain a mature understanding of his own humanity.”

The Justice obtusely asserted that “the opinion of the world community” was a reliable barometer of enlightened morality. West European nations, for example, would prohibit the death penalty for Slobodan Milosevic, Saddam Hussein, and Osama bin Laden. The moral effeteness of the French was proven during the Vichy regime of World War II and its capture and transport of Jews to Hitler’s extermination camps. Honor killings are celebrated throughout the Middle East. Libya has served as head of the United Nations Commission on Human Rights. In sum, Justice Kennedy’s bow to world opinion as a guide to constitutional morality is more to be marveled at than imitated.

His lark in Roper was no aberration. Justice Kennedy has exhibited equal enthusiasm for freestyle interpretations in discovering a constitutional right to homosexual sodomy and uncircumscribed adult access to pornography; and, in discerning First Amendment prohibitions on voluntary prayer at high school graduation or football and legal aid restrictions to challenge to government welfare programs.

The lesson of Kennedy should be clear—even to the unschooled. President Bush should nominate undiluted Borks to the Supreme Court and actively campaign against judicial filibusters aimed at forcing compromise appointments acceptable to fringe liberal Democrats.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.