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.
