and Simmons' counsel argued that Simmons' age mitigated his responsibility and should make a "huge difference" to the jurors. The jury recommended, and the trial judge imposed, the death penalty.

b. The Majority Ruling

Justice Kennedy's majority opinion, which was joined by Justices Stevens, Souter, Ginsburg, and Breyer, set for itself the task of ascertaining whether execution of an offender who was 16 or 17 years old at the time of his capital crime measured up to "the evolving standards of decency that mark the progress of a maturing society." Kennedy's determination proceeds in three parts.

First, Kennedy undertakes to engage in “a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question." Kennedy looks to the 12 states that have no death penalty and the 18 states that, “by express provision or judicial interpretation, exclude juveniles from its reach” to conclude that a majority of states-30 in total reject the death penalty for 16- and 17-year-olds. This factor, together with the infrequent use of the death penalty for 16- and 17-year-olds in those states that authorize it and the "consistency in the trend toward abolition of the practice," leads him to conclude that the “objective indicia” provide “sufficient evidence" that "our society" views 16- and 17-year-olds as “categorically less culpable than the average criminal."

Second, in an "exercise of our own independent judgment,” Kennedy then explains three "general differences between juveniles under 18 and adults [that] demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders": (a) “[A]s any parent knows" and as "scientific and sociological studies... tend to confirm,” the young more often have a “lack of maturity” and "an underdeveloped sense of responsibility.” (b) “[J]uveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure." (c) “[T]he character of an juvenile

is not as well formed as that of an adult." For these reasons, the “penological justifications for the death penalty apply to [juveniles] with lesser force than to adults."

Third, and of most direct bearing on this hearing, Kennedy then finds 'respected and significant confirmation" for his conclusion that the Constitution bars the death penalty for juvenile offenders “in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty." Notably, Kennedy finds that the fact that the United States, alone with Somalia in the world, has not ratified Article 37 of the United Nations Convention on the Rights of the Child, which “contains an express prohibition on capital punishment for crimes committed by juveniles under 18," supports his conclusion that the juvenile death penalty is unconstitutional. Kennedy concludes his discussion with this assertion:

"It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that

the express affirmation of certain fundamental rights by other nations and peoples simply
underscores the centrality of those same rights within our own heritage of freedom."

c. O'Connor's dissent

In her dissent, Justice O'Connor opines that no "genuine national consensus" has developed on whether capital punishment should be available for 17-year-old offenders. O'Connor, however, agrees with the majority's proposition that "the existence of an international consensus... can serve to confirm the reasonableness of a consonant and genuine American consensus."

d. Scalia's dissent

Justice Scalia's devastating dissent (joined in full by Chief Justice Rehnquist and Justice Thomas) cannot fairly be summarized in brief and should be read in full by anyone interested in this

case. But I will nonetheless attempt to highlight Scalia's core response to the majority's three major points:

First, Scalia explains that it makes no sense to count states that have no death penalty together with states that prohibit merely the execution of offenders who were younger than 18, because the former set of states have expressed no position that offenders under 18 deserve special immunity. In Scalia's colorful analogy: "Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car." It follows that “[w]ords have no meaning if the views of less than 50% of death penalty States can constitute a national consensus.”

Second, Scalia criticizes the majority for "proclaim[ing] itself sole arbiter of our Nation's moral standards," rather than discerning those standards from the "practices of our people." He points out that Kennedy "pick[s] and choos[es]" the scientific and sociological studies that support his position and that none of these studies even “opines that all individuals under 18 are unable to appreciate the nature of their crimes." He explains that Kennedy's “startling conclusion" that juries “cannot be trusted with the delicate task of weighing a defendant's youth” “undermines the very foundations of our capital sentencing system."

Third, Scalia confronts head-on the remarkable confirming role that Kennedy awards the "world

community":

"Though the views of our own citizens are essentially irrelevant to the Court's decision today, the
views of other countries and the so-called international community take center stage."

As for Kennedy's reliance on Article 37 of the U.N. Convention on the Rights of the Child:
"Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the
United States, I cannot see how this evidence favors, rather than refutes, its position."

"[T]he basic premise of the Court's argument—that American law should conform to the laws of
the rest of the world—ought to be rejected out of hand. In fact the Court itself does not believe

it." Scalia proceeds to point out that the Court has never sought to follow foreign law on matters ranging from the exclusionary rule, to church-state relations, to abortion. “To invoke ahen law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking. but sophistry."

With respect to Kennedy's closing oration: "I do not believe that approval by 'other nations and peoples' should buttress our commitment to American principles any more than (what should logically follow) disapproval by `other nations and peoples' should weaken that commitment. More importantly, however, the Court's statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our 'fidelity' to the Constitution, our ‘pride in its origins,' and 'our own [American] heritage. To the contrary, they are cited to set aside the centuries-old American practice—a practice still engaged in by a large majority of the relevant States of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.” (Emphasis and brackets in original.)

2. Public Declarations by Justices

Since this subcommittee's March 2004 hearing, at least two Justices have publicly defended— and, indeed, advocated the use of foreign law in support of rulings on the meaning of the Constitution. The inability of these Justices to ground that practice in legitimate legal principle and the lack of any discernible limits on their employment of that practice fully justify the alarms expressed by members of this subcommittee about that practice.

a. Justice Ginsburg

On April 1, 2005, Justice Ginsburg delivered a speech to the American Society of International Law that defended the Supreme Court's increasing use of foreign law in support of its rulings on the meaning of the Constitution. The title of her speech "A decent Respect to the Opinions of

[Human]kind': The Value of a Comparative Perspective in Constitutional Adjudication”—nicely encapsulates the core flaws in her position.

First is her thinly disguised contempt for the Framers. Obtusely appealing to the Declaration of Independence to justify the Supreme Court's dependence on foreign law, Ginsburg cannot resist the urge to purge the gender bias she perceives in the Framers' observation that "a decent Respect to the Opinions of Mankind” requires a declaration of the “causes which impel them to the Separation." Nor, apparently, did she notice that one of those stated causes was that King George III "has combined with others to subject us to a Jurisdiction foreign to our Constitution."

The rhetorical centerpiece of Ginsburg's speech is a crude attack against originalists—those who adhere to the original understanding of the Framers' Constitution and of the various amendments to it. Ginsburg absurdly insinuates that the position taken by Chief Justice Rehnquist and Justices Scalia and Thomas that constitutional rulings should not be based on foreign developments has some special kinship with Chief Justice Taney's notorious ruling in the Dred Scott case.

Taney's opinion in Dred Scott is deservedly infamous, but not because of its recitation of originalist orthodoxy. Besides its overt racism, the main legal defect in Taney's opinion is that, while pretending to be faithful to originalist principles, it in fact marked the Court's first use of the modern judicial activist's favorite tool, “substantive due process," to invalidate a statute the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories. Notably, the dissenters in Dred Scott invoked and properly applied the very originalist principles that Ginsburg finds abhorrent: "I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Constitution in all its bearings,” wrote Justice McLean. “[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it," explained Justice Curtis in exposing Taney's deviation from originalism.