Will Changes in Justices Bring Changes in Justice?

One of the fascinating aspects of constitutional law is the influence of changing times on individual justices and on the court's decisions. Why does a court revisit settled law? Sometimes to reaff

One of the fascinating aspects of constitutional law is the influence of changing times on individual justices and on the court's decisions.

Why does a court revisit settled law? Sometimes to reaffirm settled principles, sometimes to move in a different direction, sometimes to keep in step with changing values in society. Sometimes the justices themselves change their philosophy.

Let's look at the reasons for two notable changes in the U.S. Supreme Court's death penalty jurisprudence — the imposition of the death penalty on those who commit capital crimes while juveniles and on those who are mentally retarded.

The Eighth Amendment to the U.S. Constitution prohibits cruel and unusual punishment. The interpretation of this amendment has been driven by an evolving standard of decency, which changes over time. In 1989, in Stanford v. Kentucky, the court held it was not a violation of the Eighth Amendment to execute a defendant over 16, but still a juvenile, at the time he committed a murder.

In arguing against the constitutionality of his death sentence, Stanford tried to establish a national consensus against such punishment. A key issue in Eighth Amendment cases is what kind of evidence properly forms the basis of national consensus.

Stanford tried to use public opinion polls, the views of interest groups and the positions adopted by various professional associations to show a consensus against the juvenile death penalty.

Justice Antonin Scalia, author of the majority opinion, would have none of it. To him, national consensus comes from legislative enactments and from the behavior of prosecutors and juries, not from opinion polls, the views of interest groups or the positions of professional associations. He found no persuasive evidence of any national consensus on this issue. Justice Anthony Kennedy joined the majority in Stanford. Justice Sandra Day O'Connor, who concurred separately, agreed with the point that there was no national consensus on this issue, but suggested that day might come.

Also in 1989, in Penry v. Lynaugh, the court held that it was not unconstitutional to execute a mentally retarded man convicted of capital murder in Texas. O'Connor authored that decision. Penry tried to argue that there was an emerging national consensus against executing the mentally retarded. O'Connor, looking to state legislatures, found no such evidence of any national consensus, largely because only two states expressly banned the execution of retarded persons convicted of a capital offense. And as Scalia had done in Stanford, O'Connor rejected opinion polls indicating strong public opposition to execution of the retarded as evidence of such a consensus. Kennedy joined this part of the opinion.

In 2002 the tide began to turn. First, in Atkins v. Virginia, the court revisited the issue of the constitutionality of executing the mentally retarded. In Atkins, the court noted that much had changed since its decision in Penry, and held the Eighth Amendment does bar the execution of the mentally retarded. The most significant change was the number of additional states that had passed laws banning the death penalty for the mentally retarded — the kind of evidence of national consensus all the justices seem to agree is of paramount importance.

Justice John Paul Stevens, author of the majority opinion, was also swayed by the "consistency of the direction of change." To buttress its opinion about the emerging national consensus and to underscore broader social and professional support for that consensus, the majority, in a footnote, relied on the kinds of evidence it had rejected before, including opinion polls and the official positions of various religious and professional organizations opposing the death penalty for mentally retarded offenders.

The majority also noted that, "Within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." The majority was careful to say, "Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue." O'Connor and Kennedy, each of whom had been reluctant to look beyond legislative enactments, joined the majority opinion in Atkins, including its reliance on these extra-legislative factors.

In dissent, Chief Justice William Rehnquist strongly disagreed with the majority's reliance on "foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion," finding the reliance on international opinion particularly troubling. Scalia, in his usual in-your-face style, found all the evidence of the evolving consensus "embarrassingly feeble."

At the end of last year's term, in Roper v. Simmons, the court revisited the constitutionality of imposing the death penalty on juvenile offenders 16 and older when committing a capital offense. Kennedy authored the majority opinion. The majority found that there was an emerging national legislative consensus and trend against the juvenile death penalty, although not as drastic as the consensus against execution of the mentally retarded.

Kennedy could have stopped there but didn't. He noted, "United States is the only country in the world that continues to give official sanction to the juvenile death penalty." He cited several international treaties against the juvenile death penalty as confirmatory support for the court's conclusion, adding, "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions."

O'Connor dissented, because she doesn't believe there is yet evidence of a national consensus against the juvenile death penalty. But in sharp contrast to fellow dissenter Scalia, she agreed with Kennedy's general proposition that foreign and international law are relevant to the question of evolving standards of decency. Scalia, with his usual sarcasm, particularly chastised the majority for ignoring the views of its citizens on capital punishment while letting "the views of other countries and the so-called international community take center stage."

There is one last reason why courts change direction. It is because new justices join the court. They can bring fresh ideas to the discussion. And they can shuffle the deck on alliances among the justices.

Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.

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