The Right Coast

March 07, 2005
Supreme Chaos
By Mike Rappaport

That's the title of a piece in the Wall Street Journal today written by Robert Nagel, who is visiting at the University of San Diego this semester. It is a devestating critique of the Supreme Court's recent death penalty edict. Here is an excerpt:

Virtually every . . . aspect of Roper is . . . now routine: the happy insistence that the meaning of the Constitution “evolves”; the confident assertion that the nature of this evolution is ultimately a matter for the Court’s “own independent judgment”; the reliance on elite opinion as expressed in social science research or international treaties; the distrust of popular decisionmaking institutions like juries; the departure from prior rulings (in this case a decision rendered only 15 years earlier); the blithe willingness to settle under the mantle of legal principle such questions as “the age of maturity” – questions that are inherently unprincipled matters of degree; and the nationalization of issues once left to the states, along with the judicialization of policy decisions once thought to be legislative. All this is normal practice. It is the deeply confused and unsettling process that now substitutes for what at one time was conceived of as a set of fundamental, enduring principles that express the sovereign will of the people.