The Supreme Court’s judicial activists are cutting off the branch on which they sit. By rejecting the law and putting their personal opinions in its place, the justices invite the people to imitate them and disregard their decrees with the same willfulness they disregard the Constitution. If Anthony Kennedy isn’t bound by the framers’ words, why are the people bound by his?
The authority of Supreme Court justices derives from the authority of the Constitution: once they deny its authority, they deny their own. The Roper v. Simmons decision is a stunningly stark illustration of this despotism that masquerades as jurisprudence. Despotism is not an overwrought description here: we are dealing with a lawless court, judges who obey no law save their own will. Yes, they invoke a living Constitution, but that just means the real Constitution lies dead at their feet, having been trampled beneath a juggernaut of false progress.
The Supreme Court has been holding a de facto constitutional convention for decades, ripping up the old one and writing a new one without the consent of the people. A fitting punishment for this act of hubris will come when the chaos that their own example of lawlessness has set in motion consumes them in impeachment trials or worse.
The justices conceal their despotism in rhetoric and flat-out lying. As Antonin Scalia demonstrated in his dissenting opinion, the “national consensus” that the justices cite to justify the decision doesn’t exist. Kennedy and company did a shoddy job of lining up this lie, first inventing a national consensus against executing 17-year olds, then conceding that it doesn’t exist by whining about America’s refusal to ratify international treaties that forbid the practice.
As the Supreme Court writes a new constitution, the justices are using as their co-authors foreigners not Americans. This now routine reliance on foreign fashions illustrates their alienation from and distrust of the American people. In citing the “overwhelming weight of international opinion” in the Roper decision, the justices are in effect saying to the American people: we are right, you are wrong; since you won’t support our boutique views, we will look abroad for support.
The justices spoke of “evolving standards of decency,” which means evolving standards of indecency. And they speak about these standards as if they are just reporting their existence rather than pushing them into existence through judicial decree. The judges are not neutral reporters of fact but agents of activism, full of elitist disdain at the American people for not changing the standards themselves.
“Evolving standards of decency” in the world that the justices inhabit doesn’t mean children aren’t killed. It just means they have a better chance of surviving if they are guilty and dangerous. The resources the elite won’t spend on unborn children they will lavish upon teenage monsters. Through some perverse inversion of values — impossible to outline scientifically given the off-the-wall willfulness of liberalism — unborn children can be killed according to the liberal elite’s most crass utilitarian calculus imaginable while a 17-year-old menace is cosseted like a baby.
The same judges who infantilize teen murderers encourage parents and schools to furnish teens with condoms, and should those condoms fail parents, according to judges, should let their teens, as responsible young people with searching consciences, decide on their own whether to apply evolving standards of decency to unwanted children growing within them during visits to their local Planned Parenthood.
Nor is the posture of casting teens as innocent waifs one the justices ever strike in censorship cases. Indeed, a teens-know-best attitude runs through much of the Rousseauian Enlightenment thinking of the Court. From designing their own curriculum at New Age high schools to ruminating over the contraceptive menus supplied to them by administrators, teens operate like adults in the evolved culture that the Court seeks to spread.
The Court’s conveniently patronizing description of 17-year-olds in the Roper decision would have been news to Americans at the time of the Constitution’s ratification: for them, many of whom didn’t live to be 40, 17 was practically middle age. Since the justices maintain the practice of never consulting for the meaning of the Constitution the framers who actually wrote it, they made sure not to include in Roper the number of 17-year-old murderers executed at the time of the country’s founding. The Supreme Court has zero interest in the America of the founders, indeed looks longingly to the Europe that the framers left for co-authorship in forming a new Constitution to supplant the framers’ one. What Anthony Kennedy calls cultural evolution looks more like regression — a return to the tyrannies of Enlightenment Europe.
George Neumayr is executive editor of The American Spectator.
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