- The Washington Times - Saturday, March 12, 2005

Now that he has made himself an uber-legislator, Supreme Court Justice Anthony Kennedy should do as lesser legislators do. He should stand for re-election.

What I mean is, he should resign — and see if the president nominates him again, or the Senate confirms him.

The Constitution, of course, sets no term limit for justices. They can resign, however, at any time. Explaining why the Framers gave justices unlimited terms, Justice Joseph Story (a Madison nominee) ironically cited the very reason Justice Kennedy should limit his own term: He put his personal view of popular opinion above our written Constitution.

That’s the very sin the Framers feared elected politicians would commit. To balance it, they gave justices indefinite tenure, hoping they would check power-hungry politicians by following only the Constitution as first written or duly amended.

For if justices with limited terms interpreted the Constitution according to their own perceptions of popular opinion, asked Story, would it not make “at different times the most opposite commands?” Would it not “erect, behind the Constitution, a power unknown, and unprovided for by the Constitution, and greater than itself?”

Two opinions rendered 16 years apart demonstrate how Justice Kennedy, despite lifetime tenure, behaves like a legislator, not a judge, and commits the very abuse Story describes. In both cases, the question was whether the Eighth Amendment ban on “cruel and unusual punishment” prohibits states from executing killers who commit murder before they are 18. In 1989, Justice Kennedy said no. Last week, he said yes.

In 1989, Justice Kennedy embraced arguments by Justice Antonin Scalia. Last week, he rejected the same arguments — made again by Justice Scalia.

Americans have not amended the Eighth Amendment since 1989. But, thanks to Anthony Kennedy and four other justices who share his current personal opinion, the Eighth Amendment now means the opposite of what it meant in 1989 (and in 1789), insofar as executing 17-year-old killers is concerned.

In the 1989 case, Stanford v. Kentucky, two teenage murderers appealed their death sentences, pointing to the 1958 case, Trop v. Dulles. In Trop, a World War II Army deserter argued depriving him of U.S. citizenship was “cruel and unusual” punishment for wartime desertion. It was a long shot: The penalty was enforced unchallenged since the Civil War.

But a four-justice plurality in Trop ruled the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

They did not explain how future justices should divine America’s “evolving standards,” but feebly warned it must not be “reliance on personal preferences.”

In keeping with this, in Stanford, Justice Kennedy and Justice Scalia declared, “We emphatically reject petitioner’s suggestion that the issues in this case permit us to apply our ‘own informed judgment’ regarding the desirability of permitting the death penalty for crimes by 16- and 17-year-olds.”

America’s “evolving standards,” they ruled, could be found primarily in the acts of state legislatures. Since 22 of 37 states allowing capital punishment in 1989 allowed it for both 16- and 17-year-olds, clearly America’s “evolving standards” did not forbid executing juveniles.

The dissenters in Stanford suggested foreign opinion should determine U.S. constitutional standards: “Within the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved.” This seemed so ludicrous in 1989 the Scalia-Kennedy opinion didn’t even rebut it.

Last week, in Roper v. Simmons, Justice Kennedy improbably argued it was his perception that state legislatures since 1989 had demonstrated an “evolving standard” against a juvenile death penalty. He conceded, however, that of 22 states that allowed executing 16- and 17-year-olds then, 20 still do so.

However, he claimed unilateral authority for the court to change what the Eighth Amendment means. “We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles,” he said. He backed up his new case against a juvenile death penalty by citing foreign opinion.

This is exactly the raw exercise of power Story warned of and Justices Kennedy and Scalia in “emphatically” rejected in 1989.

If Justice Kennedy and four other justices can change the meaning of the Constitution whenever their personal opinions — or claimed perceptions of public (or foreign) opinion — coincide, they are no longer judges but an uber-legislature.

If Justice Kennedy is to claim the authority of a legislator to act on his personal opinion or his perception of public opinion, he should open himself to the political liability legislators face: He should resign and see if public opinion wants him back.

President Bush should accept his resignation, and nominate a replacement who respects the United States Constitution and actually deserves an unlimited term.

Terence P. Jeffrey is a nationally syndicated columnist.

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