Supreme Court bases life sentence ruling on “global consensus” nonsense

The Supreme Court’s recent ruling that struck down Chicago’s 28-year old gun ban received the lion’s share of the publicity that accompanied the flurry of decisions handed down by the High Court toward the end of its term.  However, another opinion — this one dealing with life sentences for juvenile felons — raised extremely troubling questions about the basis on which the Court decides to apply constitutional principles.  In particular, the Court’s ruling that a juvenile offender cannot be sentenced to life without parole for any offense short of murder, was based in large part on amorphous grounds that to hold otherwise would offend a “global” consensus on treatment of juvenile offenders, and would be inconsistent with “evolving standards of decency.”

Additionally, in ruling as it did in this case involving a juvenile repeat burglary and home-invasion offender sentenced to life in a Florida court, the five-member majority was clearly making a policy decision and supplanting its view of how juveniles should be sentenced, for that of the state legislature. 

Reaching beyond our country’s borders to find justification for rendering a decision in a purely domestic case with no international ramifications or issues, was particularly galling to Justice Clarence Thomas, who authored the dissenting opinion.  He also took umbrage at the notion that the Eighth Amendment’s ban on “cruel and unusual punishments” should rest on vague and shifting societal standards.  In fact, he noted, the proper forum through which to render such judgments is the legislature and not the court.

In this dissent, Thomas again shows why he is the truest and most consistent constitutionalist serving on the Supreme Court bench.

26 comments Add your comment

Ragnar Danneskjöld

July 9th, 2010
6:55 am

Dear Bob, I sometimes think you and I are the only ones who appreciate the genius of the Georgian. I would also cite Justice Thomas’s concurring opinion on the 2nd amendment case – the “privileges and immunities” argument – as further evidence that he may be eclipsing Scalia as the best mind on the court. (Don’t want that to sound like criticism of Scalia – greatly admire his arguments also.)

mrs. w

July 9th, 2010
7:50 am

The only thing of a “global” nature they shoud be worried about is illegal immigration. From all countries – not just our southern border. It is only going to get worse when they add Kagan to the mix.

Child Please

July 9th, 2010
7:53 am

If Clarence Thomas was the most consistent Constitutionalist on the Court, his opinion would only count as three fifths of a vote.

jconservative

July 9th, 2010
8:37 am

Nice column Barr. This tendency of the court to “legislate” seems to be getting worse under Roberts. We went through the Warren court and then seemed to back off legislating from the bench. Now under Roberts we seem to be back in the legislating game at an increasing pace. Roberts seems to be just hanging on for the ride; Kennedy is actually driving the train.

The number one “legislating” case of this court to date is the New Haven firemen case whereby the court actually put a new federal statute on the books. Declaring a law passed by congress unconstitutional is one thing; but writing a replacement law in a 5 – 4 decision is way beyond the pale. But since most folks liked the result they put up with the legislating.

There are simply to few of us hollering and screaming when the court decides to legislate from the bench. Legislating from the bench is legislating from the bench. The result of the case is immaterial.
The Court has always had its ear tuned to the national pulse and when we say “great” when they legislate, then we can only expect more.

Scout

July 9th, 2010
8:57 am

For the Supreme Court to make a Constitutional ruling based on other countries laws or viewpoints is in itself “Unconstitutional” !

Rusty G.

July 9th, 2010
9:06 am

I typically abhor this type of practice, most commonly when a justice feels it’s logical to lean on the consensus or language of foreign laws, as opposed to the constitution’s explicit language or our own laws’ explicit language, simply because these other cultures are presumably so much more enlightened than our own.

Here I might be a little less critical – the idea of what constitutes “cruel and unusual” punishment is an inherently nebulous concept that is probably rightly construed against societal norms and values. I’d prefer that those values be interpreted in the context of our own society, but this is somewhat different from other cases where it’s a direct conflict with otherwise clear language in our own governing documents.

itpdude

July 9th, 2010
10:19 am

Who sez SCOTUS should be deciding such things, anyhow?

Oh yeah, the activist court that brought us Marbury v. Madison.

SCOTUS has been a joke from the beginning.

luangtom

July 9th, 2010
10:35 am

Is not the very premise of having a SCOTUS to prove or disprove “constitutionality” of previous verdicts? Where does the world stage or census play into this fact? The US Constitution is to be the basis for which opinions are rendered. Period. We are allowing the Court to legislate us into Obama’s one world scenario. When will the citizens wake up and take this country back? It will soon be too late.

Larry

July 9th, 2010
11:15 am

Thanks for alerting us. Unlike your brethren at the AJC, you actually are disseminating information instead of trying to stir the pot of social unrest.

joe

July 9th, 2010
11:16 am

These rulings are only going to get worse with Socialist Barry at the helm appointing judges who are more liberal than he is…

DawgDad

July 9th, 2010
11:50 am

Well, it won’t be long before the prevailing “global consensus” will be a conglomeration of Islamic Law and servitude to Chinese tyranny. What amazes me is the vast number of Americans oblivious to their own eventual demise.

joan

July 9th, 2010
3:43 pm

DawgDad has it right. I think it is only because our schools and education systems have become so abysmal that politicians can get away with what they are getting away with. We have so many truly ignorant people in this country–just walking around with their iPhones and cellphones glued to their ears, and no idea what is going on in the world. What is more they don’t care, so long as they collect their unemployment, or mom and dad don’t kick them out. 26% of Americans don’t know who we fought in the Revolution. Say it ain’t so.

Barack

July 9th, 2010
4:05 pm

Enter your comments here

Bryan G.

July 9th, 2010
10:02 pm

I have to disagree. If a punishment isn’t used in any other country in the world…doesn’ that make it, in fact, “unusual.” Americans do a great job of locking kids up for long periods of time (and we only recently decided that we wouldn’t execute them – another case decided with this rationale).

Either we think that children are immature or we don’t. We tell kids they can’t vote, buy booze, buy cigarettes, have sex, marry, etc. etc. Why do we hold them to such high standards of maturity when they commit felonies? Are children who commit felonies more mature than those who did not??

I’ve heard people say “they should throw the book at that 15 year old kid who committed [insert felony].” I’ve never heard someone say “gosh, that 15 year old kid is obviously so mature we should let him vote/buy beer/have sex/marry.”

J.B. STONER

July 10th, 2010
10:03 am

YALL NEED CIVIL WAR EDUCATION, BRING BACK CHAINS AND WHIPS AND PROBLEMS CAN BE SOLVED………

Bocephus

July 10th, 2010
11:02 am

J.B. makes plenty of sense….
Yall should have voted him Govenor many years ago…
Love them Confederate flags he waved

Experts needed

July 10th, 2010
2:15 pm

I defer to the Constitutional experts here. Did they mean “global” as specifically referring to other countries or as merely a consensus this county is coming to?

When someone says “universal” for example, they are necessarily claiming it’s the point of view of every sentient being in the universe.

Were other countries mentioned in the verdict?

Bryan G.

July 10th, 2010
6:38 pm

Experts needed – the opinion looks at how other developed countries sentence juveniles. The US is the only developed country that sends juveniles to prision for life

david wayne osedach

July 11th, 2010
9:45 am

How many/how few actually serve out their entire life sentence?

MPercy

July 11th, 2010
10:56 am

Child Please: Really? I seem to recall that the Constitution was lawfully and properly amended to rectify that initial mistake.

Amendments, lawfully passed, are the only way that the Constitution should be updated to “modern sensibilities”.

William R. Barker

July 11th, 2010
3:32 pm

@ Ragnar Danneskjöld –

Add my name to that of you and Bob singing hosannas to Justice Thomas.

Yeah, yeah… Scalia is a genius… but he gives far too much deference to precedent in my not so humble opinion.

@ Child Please –

“Childlike” is more like it. (*SMIRK*)

Perhaps you missed the news… there’s a Constitutional Amendment process which beyond the Bill of Rights has been utilized seventeen other times.

@ DawgDad and Joan –

(*THUMBS UP*)

Yep… ignorance and apathy are the “enemies from within.”

Beyond this… the “dumbing down” of America has been a deliberate – and unfortunately successful – tactic of the Left for several generations now.

@ Bryan G. –

(*SCRATCHING MY HEAD*)

You lost me, bud. What’s your point…??? Try again. (Seriously… maybe it’s me… but I’m not following you comment with regards to Mr. Barr’s commentary.)

@ J.B. STONER

Troll alert!

@ Bocephus

Troll #2.

@ MPercy

(*GRIN*)

I read (and reply) in sequence. It appears great minds think alike! (*CHUCKLE*)

BILL

Hunk Williams Jr.

July 11th, 2010
5:29 pm

William Barker—
You are an idiot.

Bryan G.

July 11th, 2010
9:47 pm

WRB – The point is that we draw distincitions in the law between adults and children based upon the premise that children are immature and cannot make adult decisions. However, for some reason when a kid commits a felony, we forget all that. Either we think children are mature (and thus should ahve all the rights of adults) or we do not (and thus should not EVER lock them up for life).

John D

July 14th, 2010
2:17 pm

Scout said: “For the Supreme Court to make a Constitutional ruling based on other countries laws or viewpoints is in itself “Unconstitutional” !”

I have two comments.

First, if you read Article III of the US Constitution, you’ll see that the Supreme Court’s jurisdiction extends to all cases “in law and at equity.” The use of this language (and particularly “at equity”) is a clear indication that the framers intended to adopt English law insofar as it was not inconsistent with the Constitution or domestic law of the United States.
Congress, of course, followed this up immediately with the reception statutes, which formally “received” the old common law to the extent that it was not inconsistent with US law.

The common law system is built on authority, and common law judges the world over cite each other’s opinions. That’s how the common law works.
It is not at all unusual for the Hong Kong Supreme Court to cite the Supreme Court of Canada as authority, for example.

It is always understood, of course, that foreign authority is merely instructive or pursuasive–it is not binding.
So long as the US Supreme Court remembers this (and it always does), there’s nothing unconstitutional about its use of foreign precedent–indeed, the wording of Article III and the reception statutes appear to DEMAND it!

Secondly, the Eighth Amendment, on its face, invites the courts to consider whether a given punishment is “unusual.”
Of course, the punishment in question must also be cruel if it is to be unconstitutional.

The plain language of the amendment, though, clearly implies that it is proper for a judge to consider what is a “usual” punishment, and this invites SOME consideration of practices in other free and democratic societies.

John D

July 14th, 2010
2:19 pm

Or, to summarize in a more digestible form:

The US Constitution adopts the English common law (to the extent that it is not inconsistent with the Constitution), and the common law system has always allowed the consideration of foreign authority.

Reading the work of other judges is part of the common law, and the common law, per Article III, is American law!

John D

July 14th, 2010
2:25 pm

itpDude said: “Who sez SCOTUS should be deciding such things, anyhow?

Oh yeah, the activist court that brought us Marbury v. Madison.

SCOTUS has been a joke from the beginning.”

Well, tell us how Marshall should have resolved that case.

The issue was basically this:
The Judiciary Act of 1789 (an ordinary statute enacted by Congress) said that Marbury could sue for a writ of mandamus in the Supreme Court.

Article III of the US Constitution said that in a matter like Marbury’s, the Court only had appellate jurisdiction (i.e. Marbury would have to originate his action in a lower court).

What’s the Court to do when the statute says it has original jurisdiction, but the CONSTITUTION says it has only an appellate jurisdiction?
As the Constitution is the Surpeme Law of the United States, the answer is pretty clear: a statute inconsistent with it is, to the extent of the inconsistency, NOT law.

The unenforceability of unconstitutional statutes is implicit in the structure of the US Constitution, and I defy you to prove otherwise.