Pissing Up a Roper

George Will agrees with me and eviscerates Justice Kennedy's Roper opinion:

While discussing America's "evolving standards of decency," Kennedy announces: "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty." Why is that proper when construing the U.S. Constitution? He is remarkably unclear about that. He says two international conventions forbid executions of persons who committed their crimes as juveniles. That, he thinks, somehow illuminates the meaning of the Eighth Amendment.

Kennedy evidently considers it unimportant that the United States attached to one of the conventions language reserving the right "to impose capital punishment . . . for crimes committed by persons below eighteen years of age." The United States never ratified the other convention Kennedy cites. Kennedy the roving moralist sniffily disapproves of that nonratification as evidence that America is committing the cardinal sin of being out of step with "the world community."

Will concludes, "Kennedy's opinion, in which Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens joined, is a tossed salad of reasons why those five think the court had a duty to do what state legislatures have the rightful power and, arguably, the moral responsibility to do."