- The Washington Times - Tuesday, May 18, 2010


The U.S. Supreme Court went on another philosophical bender on Monday, this time on behalf of heinous juvenile criminals. Years from now, though, scholars may still cite the brilliant dissent by Justice Clarence Thomas as an example of devastatingly effective reasoning. Against the high court’s sadly devolving standards of decency, Justice Thomas’ opinion stands for the permanent principle that judges should be the Constitution’s servants, not its editors.

In Graham v. Florida, Justice Anthony Kennedy wrote for the court’s majority that it is unconstitutionally “cruel and unusual punishment” to sentence a juvenile offender in a “nonhomicide crime” to life in prison without parole. The court flat-out invented this rule. To do so, it relied on a familiar litany of self-created excuses for judges to act as legislators.

These excuses include: “evolving standards of decency”; the justices’ assessments of the “proportionality of sentences”; “penological theory”; “statistics” modified by “supplements” provided by the high court itself; the court’s “exercise of its own independent judgment”; the “hope” that the criminal can achieve “self-recognition of human worth and potential”; and, most outrageously, “the judgments of other nations and the international community.”

Justice Thomas eviscerated these arguments, starting with the court’s assertions that “standards” have been “evolving” in the exact opposite direction from the court. “Congress, the District of Columbia and 37 states allow judges and jury to consider [life without parole] in juvenile nonhomicide cases,” he wrote, and “legislatures in 47 states and the District of Columbia [in recent years] enacted laws that made their juvenile systems more punitive,” not less.

Second, he said “the court misstates the data on which it relies.” The court wrongly used statistics applicable to all adolescents rather than available data about the sorts of violent offenders at issue here.

Third, “foreign laws … are irrelevant to the meaning of our Constitution.” Fourth, the high court has no right to dictate “that its own sense of morality and retributive justice preempts that of the people and their representatives.” Put another way, Justice Thomas wrote: “I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in [the Constitution] gives us that authority.”

After Graham v. Florida, no state can sentence to life-without-parole the 16-year-old who sliced a teenaged girl’s throat, raped her, stabbed her 20 times and pounded her face into rocks. Likewise the 17-year-old who beat and raped an 8-year-old girl before leaving her under 197 pounds of rock in a landfill. Likewise the Florida juveniles who gang-raped a woman and forced her to perform oral sex on her 12-year-old son. These were actual cases cited by Justice Thomas and Chief Justice John Roberts. The high court’s decision tells every state that each of these vicious thugs must be eligible, at some point, for parole.

If those are the “standards of decency” the court is upholding, then our Supreme Court is sickeningly depraved.



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