This particular argument is flawed. By the same logic, we shouldn't arrest people who have been convicted of kidnapping, but most states do. (Up to ten here.)

BoF, unfortunately, the possibility is there. And somtimes it happens. If authorities hadn't been able to make a case on an additional murder, serial killer Coral Watts may have been released. It was a very close call.

And Watts wasn't a juvenile with the added sympathy factor of "he's just a child" working for him. LWOP must be available if society is to be safe from killers to whom a 25 year sentence only means they have to wait until they are ~42 years old before they are back on the streets.

There are heinous children out there. As Daffy said, I believe that some people are born evil and simply cannot be re-habilitated. What this decision has done, in effect, is robbed the courts of the ability to determine, on a case-by-case basis, if the defendant deserves the "ultimate punishment".

As for OLS's stance about the legal standing of children, I think the situation needs to be examined closely when we are talking about murder.

When a person chooses to murder another, we need to take a close look at them and determine whether or not society is harmed by their mere presence.

Let's take the case of Lee Malvo. This guy systematically murdered many people over a period of weeks. Is he re-habilitatable? Do we want such a psychopath released in 20 years? Maybe, maybe not.

What this decision does is take away the ability to examine these cases individually and make that determination.

Look at the facts of the case in question here. Simmons bragged that he could get away with what he had done because he was underaged. Guess what? The courts proved him right. Seth Waxman used this as proof that Simmons didn't know what he was saying, claiming : High Court tackles ethics of juvenile death sentences



I guess being smarter than the justice system makes one incompetent.

As I am sure you all remember Lee Malvo shot and killed 10 people injuring 3 others. He is 17. Every one of those people had lives had children, families, spouses and he took their lives all of them and ripped them apart. He deserves the chair. I say recharge the chair just for what he did. Now none of you can tell me that he does'nt deserve to die for what he did.

So what is the basis for not executing juveniles? Is it not that they are deemed not yet mature enough to evaluate the consequences of their actions? Yet the USSC has deemed state laws requiring parental consent for children seeking an abortion unconstitutional. They have held that many minors are capable of making this decision. Now what is a more complex decision in our culture? The decision to have an abortion, which even most pro-choicers confess is a difficult decision for an adult to make, or the decision to kidnap someone, bind them and throw them in a river?

There is no national consensus on the juvenile death penalty. Every juror was required to consider the murderer's age before passing a death sentence on a minor. There is no magic line where someone reaches maturity. Individuals vary, a jury of twelve could certainly decide the maturity level of a defendent at trial.

This charming twosome (there was a 12-year old involved also) in San Luis Obispo beat an old man to death with a skateboard, stole his money and his keys, bragged about it to a friend and then went for a joyride before getting caught. The old man died in his home and wasn't discovered for several days. Source

Probation and camp. That'll work.

I suppose you could argue that he didn’t think beating an old man over the head with a skateboard repeatedly would kill him, but I for one wouldn’t believe it.

I agree that the jury should decide but I think that the death penalty option still should be open if for nothing else at least capital murder and the murder of children(which is unforgivable in my eyes ). The USSC cannot decide how someone can be punished when people are raised and think completely differently in different parts of the country. A jury in Texas is gonna want to put a child abuser turned killer on the slab no matter their age, whereas, a North Dakota jury would send the kid to a mental hospital for "rehabilitaion" until he's 25 and free.

Hugo makes an excellent point on how the Court is inconsistent in its view of the maturity of minors in the different contexts of abortion and the death penalty.




FLIP FLOP. The Justices will cherry pick an opinion on the maturity of minors depending on what fits the outcome they seek to achieve. Minors are mature enough to have an abortion without parental consent but not mature enough to face the death penalty for murder. FLIP FLOP.

Scalia, on the other hand, remains CONSISTENT in his views on both issues: That the role of the judiciary is to respect democratically enacted legislation when it comes to policy issues. If the Legislature sees fit to have the inconsistency so be it-- it is not the Court's role to legislate from the Bench.

Exactly. We let people, kids included, get away with some of the most heineious crimes that can be commited. A kid that has the guts to kill someone has the guts to make sure he/she gets out and then kills again. They take something that can't be given back. They need to have their life stripped from them just as they ripped someone elses from that person old, young, child( definetly should burn for this one). The life they took can not be replaced. A family can't be rebuilt after the loss of a loved one, and these kids do not deserve to see their " best years". Life is a privlege for those that take it.

Surely you recognize this is half the picture and you decided to omit Scalia's inconsistency, or missed the inconsistency due to trusting his judgement, with regards to teenagers as well. He contradicts himself by suggesting teenagers are incapable of getting an abortion without parental consent by arguing "Age is a rough but fair approximation of maturity and judgment" in Hodgson but makes no such concession in Roper, rendering teenagers capable of facing capital punishment but incapable of getting an abortion on their own judgment. It's a logical blunder for Scalia by revealing a personal preference when it comes to abortion rulings. It may not have stuck out for me save that Scalia demands other judges put their feelings aside on constitutional matters. IMO it sloughs off the constructionist reputation he has set out for himself and exposes the same human failing he's quick to point out in others.

Unfortunately the ruling does more to reveal spats between the Scalia and Kennedy camps in a game of ideological tit-for-tat and not enough to shed light on the Constitution. I think Kennedy is well aware that he will not be up for Chief Justice, just as aware he contradicted himself in Hodgson, and doesn't care about either. Kennedy is a private man whom I think would rather stay out of the limelight, but he couldn't pass up the opportunity to rib Scalia using his colleagues own reasoning from previous opinions.



Do you agree with The Supreme Court that the death penalty is unconstitutional when applied to juvenile killers? Why or why not?

I don't agree. Barely.

Like others have voiced of late I also believe laws bestowing coming of age rights and privileges are arbitrary. We expect our "boys" to look down the sights of an M-16 and kill another human being but they can't be trusted with a beer. I extend the same to capital punishment.

On the other hand, BoF's exoneration-by-DNA example doesn't bode well for justice.

And on the other, other hand, I don't understand why those arguing for federalism just demand federal courts and the USSC just stay out of the business of accepting cases whenever a state's right issue comes up, upholding state supreme court rulings by default, because the very act of ruling against the state pulls the carpet out from under the legislative process.

When I read the USSC accepted to hear the case it surprised me because last year Scalia suggested states should come up with an amendment on abortion or capital punishment if the country felt strongly enough about the matter, and I agreed with him. I seriously doubt the country will broach a capital punishment amendment, however. As heinous as some of these crimes are and as deserving of death as some of these kids are, we would be loathe to confront parental failings in a society that increasingly reflects a cold "sink-or-swim, social Darwinist" brand of rugged individualism.

How did I omit Scalia's "inconsistency"? I am the one who posted the link to the Slate article that attempts to post Scalia as just as inconsistent as O'Connor and Kennedy. My response to the charge (in the Slate article as well as from you) that Scalia is inconsistent-- is to point out that, in fact, he is quite consistent. He will usually rule in such a way as to respect democratically enacted legislation unless there is a clear constitutional violation. In both instances (abortion and death penalty) he consistently sided with upholding the legislation. Scalia is not the one imposing his views (albeit "inconsistent" ones) on the country. Scalia is not the one putting his "personal preferences" into the determination of constitutional matters. He understands that it is the Legislature's prerogative to make these sorts of determinations. His position on these two cases does not "slough off" the constructionist reputation he has set for himself. On the contrary, it cements it further-- just how true he is to his judicial philosophy.

In the previous post, you wrote:



Now:



Perhaps you should read the article again. Saletan doesn't argue that the rest of the court is as inconsistent as Scalia. He argues Scalia and Rehnquist are the ones who've been inconsistent when it comes to juveniles. From the article:



If all it takes to be consistent is simply a matter of ruling in favor of the legislature without taking reasoning into account, then it could be argued that Kennedy and the gang are just as consistent by ruling against the legislature again. I'm not questioning their voting record, but the rationale behind two standards for abortion and capital punishment.

OK, then I will try it again:


As for the rest, why is it you will not even acknowledge that the people have every right to overturn the Judical Branch through the constitutional Amendment Process?



You are very right on this one. I have always had a problem with the fact that I child cannot have a single medical procedure (not even a hang nail) addressed without parental / guardian consent or a legal order. Yet, they can have an Abortion, which is certainly a medical procedure without any of the above. It makes little to no sense to me. A child cannot enter into a cell phone contract, because we fear they do not understand the consequences, and yet they can have a abortion without any parental involvement or council if they choose too.

Are you having trouble understanding the degree of the offense, perhaps? Any example, when carried to its extreme, goes from the "sublime to the ridiculous." So it is that the same logic does not apply to every circumstance. We could only expect that on the planet Vulcan on Star Trek.

In the case of kidnapping, the person is incarcerated so that he may not endanger the safety of the populace. Depriving a kidnapper of his freedom is far different from depriving him of his life. Life imprisonment does the same thing in the case of convicted murderers.

The prison system is called the Department of Corrections, right? If the person cannot be "corrected" he/she is considered "incorrigible." The person remains in the prison system.

How does killing a person who killed while a minor "correct" that person? No, execution is cruel and unusual punishment. Killing minors does not help society--it is based on vengeance.

Some of us not only believe that the Constitutional structure of the Federal government is supposed to be 3 separate but equal branches, but that there's supposed to be a balance of powers between the Federal government and the states, with the real power residing with the people. Those of us who believe this find that this ruling transgresses both balances.

Yes, who determines "cruel and unusual", by what standards?

Questionable. It is within the practical power, but Constitutional scholars find the justification for judicial review to be weaker than the President's role as commander in chief, but stronger than the "right to abortion" discovered in the penumbras... Setting aside the mostly theoretical question of the legitimacy of judicial review, there remains the question of whether or not this finding is in accordance both with the Constitution and Constitutional law. Since neither encompasses "international opinion", perhaps you can see the concern? Since it clearly, on very weak grounds, overturns previous precedent, perhaps you can see the concern?


First, the Constitution is set up to prevent tyranny of both the majority, and the minority, a fact that becomes clear upon a moment's consideration. Why else would we have elections? Second, the people already had their say through the legislative branch, namely, that under specific and very limited circumstances codified into the statutory law (all of which this case satisfied), an individual who committed a capital crime as a juvenile could be executed.

Lesly wrote:

:

Follow me on this one Lesly. Scalia wrote in his dissent:





Surely you can see the point Scalia is making here. The Court conveniently adopts a different view of a minor’s maturity level depending on how it wants to rewrite the law to suit its view of the proper end result. Juveniles are mature enough to understand the moral gravity of deciding to have an abortion (without parental notification) but not mature enough to understand the moral gravity of murder so as to justify a sentence of death.

Scalia is accusing the Court of “flip-flopping” its view of a juvenile’s maturity level, in order to justify its judicial activism. The accusation is aimed at illustrating how the justices are substituting their own views for that of the Legislature, with what appears to be glaring inconsistency.

When I read the Scalia dissent, his accusation made perfect sense. Notice the cases he cites in support of the inconsistency: Bellotti v. Baird and PP v. Danforth.

Why then does the Saleta article say:



Very disingenuously, the Saleta article misrepresents Scalia’s accusation of inconsistency as directed toward individual justices (O’Connor and Kennedy). When it looks like he was actually accusing the Court itself of inconsistency in its prior holdings in Belotti and Danforth (as you can see from the direct quote above).

I fell for this sleight of hand and assumed, as Saleta disingenuously implies, that O’Connor and Kennedy had signed on to the opinions holding specifically that parental notification statutes are unconstitutional.

Unless I am missing something, it looks like Saleta was dishonest in his representation of Scalia’s accusation.

In any case, it really changes nothing. Scalia is entirely accurate in presenting the Court as inconsistent in its views about the maturity level of minors. Scalia’s point is that the Court is hand picking rationales to suit its ends. The end being to call a statute unconstitutional and impose its own view as to what the law should be.


Lesly wrote:




The type of “inconsistency” (regarding the maturity level of juveniles) Scalia is railing against is only relevant when the Court is overturning legislation as unconstitutional. The power of judicial review is so vast that the Court has a DUTY to exercise it in a way that is objective and not subjective when it is overturning a democratically enacted piece of legislation. Inconsistency in rationale is a red flag that the Court is not exercising its judicial review in an impartial or objective way.

In contrast, Scalia’s opinion as to the maturity level of juveniles in either context (abortion or death penalty) is simply not relevant. He is not, through judicial review, seeking to overturn the law as unconstitutional. He is doing nothing more than to respect the determination of the Legislature.

State Legislatures act inconsistently-- that is the nature of federalism.

When the Court acts inconsistently it loses credibility as an impartial arbiter.

There isn't a day when you can't find an example of a brutal, senseless and heinous crime, DaffyGrl splashed all over the newspaper, evening news and the Internet. But the banality of executing children for crimes they lack the reasoning and understanding of, is catering to a desire for retribution and nothing more. Society cannot lock away or kill every juvenile that commits a violent crime. Building prisons is a growth industry in this country, but the only product is produces is turning predators into superpredators.

The longer, more ardous and less satisfying recourse to "lock 'em up and throw away the key" is to save some, lock up the truly degenerate types and try to mainstream the most likely to succeed back into society. The truth of prison is, that most the guys that are going in are eventually going to come out. If they can come out with a chance to return to society after paying their debt to it, that will enhance our collective security far more than building prisons as fast as we can or jabbing needles into Death Row prisoners.

There is so much emphasis place upon punishment that there's barely any left for rehabilitation. The Supreme Court is correctly following the public sentiment by not eliminating the death penalty entirely but modifying and limiting its application. It is a perfectly centrist decision from a Supreme Court dominated not by it's predominance of Republican appointees (seven), but by O'Connor and Kennedy's ability to pull together a five-vote majority on vital issues.

As regards all the hero-worship directed toward one Antonin Scalia, his petulant dissent once again illustrates his love for his self-appointed martyr status and acid disdain and intolerance for viewpoints contrary to his own. We've heard time and time again of Scalia's great intellect and judicial savvy, but the man does not play well with others and his caustic personality seems to have driven the more moderate members of the Court away from his axis of influence and into that of Stevens, Breyer, Ginsburg and Souter. Nice trick, Tony.

I did acknowledge that OS. I would agree that recourse through an amendment is the only constitutionally correct action if I believed that the Court had imposed the decision in an impartial way. But I just don't see the Court as impartial here.

How is it that the statistics supported "consensus" in 1989 but do not now, when not all that much has changed? How can I believe the Court to be an impartial arbiter when it has demonstrated inconsistency in its view of the maturity level of minors depending on the circumstance? An impartial decision making body is not supposed to apply the law inconsistently across the board like this. Otherwise it screams out that the decision is nothing more than the subjective views of the Justices, precisely what it ought not to be. The point was made that the justices are no more inconsistent than the Legislators. True, but that is the Legislature's prerogative. We live in federalist country where States often times have inconsistent laws especially when it comes to minors.



You are right, Scalia is a very difficult man to get along with I think. I may have told this story already--

I was recently at a dinner honoring Scalia with some 200 guests, many of them currentl law students. During his speech, he left some time for questions and answers. One of the students stood up and asked him a specific question regarding a case whose opinion he had authored. The student's question made clear that he agreed with Scalia's opinion. However, the cranky and petulant Scalia told the student to sit down, that the question was too complicated and would bore the rest of the audience. Not exactly tactful. But that is just the way he is. Interestingly, I have read that he actually gets along quite well with Ruth Bader Ginsburg-- who comes from the same area in New York city as he does. He does not get on well with O'Connor.

So, you are right, he does not "play well" with others. However, any lawyer, even the most liberal one, will have to tell you that his jurisprudence is truly brilliant. There are a number of instances where he has divorced his personal views from a case and come down exactly the opposite from how he would like to see the law. Why? Because he respects our federalist system and the separation of powers.

As a side note, the "consensus" argument used in this case is bothersome because our laws are not supposed to be based on "consensus" they are supposed to be based on rights, as detailed in the Constitution and the Bill of Rights.

However we have this "consensus" now, whereas we did not have it before because more states have banned the practice. As I stated before, in 60% of our states, the death penalty could not be applied to minors.

As for the Idea that they are inconsistent based on their view of maturity levels of minors as applied to different circumstances, what about:

18+ to vote
25+ to be elected to the House
30+ to be elected to the Senate
35+ to be elected President


All of these different age restrictions can be found in the constitution itself (or it's amendments). This country has a long history to legislating age minors differently based on age vs. circumstance. The country also has a history of changing age restrictions. At one time the voting age was 21 for example.

I for one have a problem with this inconsistency in general, especially as it applied to things like smoking, drinking, gun ownership, etc (all state issues, though some are not free from federal blackmail). However if anything the court is treating the issue of age in a completely consistent fashion with the rest of the country on both state and federal levels.

If it is not unconstitutional for the state and federal legislature to create laws that treat minors differently depending on the circumstance they why can the court not do the same?

OS, I don't understand this point. I know that the Constitution protects individual liberties in the Bill of Rights. But if the test is not based on "consensus" as to what is cruel and unusual, what could it be based on? How else is the Court supposed to determine what is cruel and unusual? It seems reasonable to answer the question by asking whether a consensus of States view the practice (whatever it is) as "cruel and unusual".



Isn't our nation based on federalist principles? By definition this would mean that States will have laws (of all types) that may be inconsistent with each other.

But on what grounds do you justify the Court having inconsistent standards? The principles of Federalism would not apply to decisions reached by the Court. So on what grounds do you think it is appropriate?

And I agree that the Court's recent pronouncement on the juvenile death penalty is indeed consistent with other specific constitutional age requirements. But the recent holding on the juvenile death penalty is not consistent with other Court holdings related to minors. The Court's view of minors having the right to an abortion without parental consent is INCONSISTENT with other constitutional age requirments.

When a 60% to 40% majority establishes a consensus what is the meaning of the 10th Amendment? What powers are left to the states?

I realize Scalia is a lightening rod..so carefully read O'Connor's dissent where she recognizes the diffference between being a legislator and a judge.

OK, then can why is it you do not support the Supreme Court determining the Death Penalty for Juveniles is Cruel and Unusual when 60% of the states ban the practice?



I justified the court have different age standards for different circumstances because the US Constitution itself names different age standards for different circumstances. Thus, it cannot be unconstitutional to do the same.



I have voiced my opinion on this point several times. I agree with it. However, I agree with the court banning the death penalty on Juveniles as well. I think the fix for this inconsistency is to be found by redressing the juvenile abortion issue, not the juvenile death penalty issue.

On the other hand. Abortion and Murder are two different circumstances. For them to be the same circumstance, and thus create an inconsistency, they would have to be seen as the same in the eyes of the law. Since the law does not see Abortion as Murder (my personal opinion not really being relevant here), the law treats them differently. Just as the law treats voting, differently then running for federal office in regards to age requirements.

?

Because I don't think there is a significant difference between 1989 and 2005 in this regard. I cannot understand how all of a sudden a consensus exists where none existed in 1989 and not all that much has changed. At least not enough to all of a sudden be a consensus.




The Court is supposed to apply neutral and consistent principles when interpreting the Constitution. They are judges not legislators or Constitution drafters. For the same reason that I have no problem with Legislators having inconsistent standards for juveniles on different things (even in the same state), I have no problem with the drafters of the Constitution writing in the different age requirements. When judges on the Supreme Court apply inconsistent rationales and principles in their jurisprudence it is cause for concern because they look more like Legislators and not impartial arbiters charged with interpreting the law.

Then apparently, the change in the law in states Like Missouri, which push the consensus to 60% of the states being opposed to this practice is irrelevant to you?



So the court, making legal decisions based on the same mindset as the founding father's who made similar decisions in regards to age requirements is not acting in a constitutional fashion? WHERE IS THE LEGISLATING HERE??!??? A case was brought before the court, claiming that a practice of the law was not constitutional. The court agreed. I fail to see the legislating in this action. IMHO this argument you present is worse then weak. Where in the constitution does it say that the Supreme Court cannot rule on a case like this? Where in the constitution does it say that the court cannot rule on an issue like age restrictions, on and issue by issue basis?

From Stanford vs. Kentucky



You see, OS, it is prohibitively expensive to test each individual to see if they reach the requirements to vote, or drive, or drink. Fortunately, there are not as many juvenile murderers as juveniles wishing to vote. It is part of the trial process to evaluate the maturity of the defendant before sentencing him.

Of course not. It just doesn't turn it into a consensus.




Like I said, the analogy doesn't work. You are comparing apples to oranges here.




If you don't understand the difference, I am not sure what I can say to clarify it. Look at it from a different perspective: What in your opinion is the difference between Legislators and Judges?

Here's something I don't believe was focused on a lot...



First off, be honest and call a spade a spade. International law and opinion influenced the ruling. Second, now that they've set that precedent, I imagine it is now legal to smoke marijuana and prosecute criminals using what we would define as illegally obtained evidence.

That said, the rest of the world is not America. Japan does not have our crime rate, ergo, it's laws should not influence ours.

Also, to those who throw out the phrase execution of minors, bear in mind, that is the age when they committed the crime, not when they were executed. I've never heard of a case where a state ever fried a 16 year old.

And why are we willing to try minors as adults in serious violent crimes, yet not willing impose the same punishment. The kid from Missouri planned this murder-robbery on the basis that he could ultimately get away with it because he wasn't 18. Whoever said that one more birthday would not have changed him was absolutely right.

I do believe that it should be reviewed on a case by case basis, though. As we do, *gasp* other criminals. What a concept.

It is a constitutional requirement IF the penalty is allowed. How does banning the penalty contradict this ruling? There is no need to individually test people if a practice is not allowed.



So now 60% is not a consensus? Then what is?



How so? Care to elaborate on this with something that resembles facts? In the constitution itself different age restrictions are applied to different circumstances and yet you argue that when the Supreme Court rules in a way that applies different age requirement to different circumstances that it is unconstitutional to do so. So, does that make the constitution itself unconstitutional?




I understand perfectly well what the job of a legislator is. It is to create law. I understand what a Supreme Court Justices job is. it is to ensure that legislation is consistent with the constitution, bill of rights, etc. I fail to see how ruling that the laws that allow this practice are invalid is somehow legislating rather then judging the law.

Where is the new legislation here?

First, though the rest of the world is not America, America is part of the rest of the world. The way we dispense punishment upon our citizens is watched and studied by other countries. No one---certainly not Justice Kennedy---is saying the U.SA. must tailor its laws to match or suit foreign countries. However, if the U.S. dispenses justice without any semblance of mercy that resonates and other nations will certainly note it when America criticizes their record of human rights.

No, nobody "fries" a 16-year-old when they are convicted of a murder. The appeals process in capital crimes can go beyond ten years. That gives the state a bit more time to fatten the calf before slaughtering it. You are parsing words, Titus. The state does not actually execute juveniles at the actual age they were when the crime was committed. But waiting until they get through puberty and their voice deepens and they can grow some facial hair is just playing the waiting game until they do become "old enough" to be put to death.

I guess it makes it slightly more palatable for supporters of applying the death penalty to kids if you wait long enough for the killer to mature a bit before doing them in.

Overland Sailor wrote:




and again:



OS, just because you say something—over and over again—really loud---doesn't make it so.

Your argument, as I understand it, is: because the Constitution has different age standards for different circumstances then the Court’s use of different age standards for different circumstances is “Constitutional”.

My response: so what? You are comparing apples to oranges.

You are comparing legislative action with judicial action. You are saying that because inconsistency in legislative action (of the highest order) exists, then inconsistency in judicial action is acceptable. The problem is that we don’t require impartiality from our legislators the same way we do from our judges.

Mind you, I did not say that the Court had no business taking the issue and ruling whether the 8th amendment was violated. Of course it should have taken the case and considered it and issued an opinion on it. The problem I have is how the Court arrived at its opinion. Judges are supposed to be impartial. When the rationale for the holding is based on one view of juveniles that is entirely inconsistent with the view in another holding a red flag goes up. How is it that a minor cannot sufficiently understand the moral implications of murder but can understand the moral implications of abortion? It is reasonable to ask how it can be that the Court can employ two different rationales to arrive at two different conclusions. If the inconsistent results are not sufficiently explained it indicates that the Court is not being objective and impartial. The Court appears to be picking a choosing rationales (regardless of consistency) to justify the end result. That is the antipathy of impartial jurisprudence.

We do not hold the Legislators up to scrutiny on the basis of this type of inconsistency in the same way because they are not judges who are charged with being neutral, impartial and objective.

This is why your analogy is not relevant. It compares apples to oranges in the sense that it compares legislative action with judicial action. We don’t require the same of the two.

And just because you continue to call it legislating from the bench, and refuse to answer any request for clarification, also does not make it so. Perhaps you should consider your own advice. The reason I continue to ask the same questions is because you continue to avoid answering them.



No. I am saying that the ruling by the judges in this matter is completely consistent with the constitution itself. The court, chose to consider the issue of cruel and unusual punishment as it relates to a certain age group. There is nothing unconstitutional about this, this is NOT legislating from the bench in any way, and there is no reason at all why an issue like this should not be heard and ruled on by the supreme court. There is NOTHING inconsistent in this ruling on either a constitutional or judicial ethics level.



It is NOT inconsistent, in that both circumstances are seen as COMPLETELY different in the eyes of the law. Until the court rules that Abortion is Murder, Abortion CANNOT be equated with murder, or even crime in anyway in the eyes of the law. Since the law sees Abortion as nothing more then a medical proceedure there is no difference between having different age standards in relation to abortion, and the crime of murder then there are between having a different age standard for smoking vs. serving as President.

Now, if you were arguing that the court's position on Abortion proceedures was completely inconsistant with the law in regard to parental/guardian permission requirments for any other medical proceedure then you would find that I completely agree with you. However, comparing a ruling on a medical proceedure and a ruling on a criminal sentence is a perfect example of "Apples and Oranges".



You continue to bring this up, and ignore the rest of the questions. the bottom line here is that Abortion IS NOT a crime, and Abortion IS NOT murder in the eyes of the law. There are NO legal inconsistencies because these two circumstances have no link what-so-ever in the eyes of the law.



So, were is this lack of impartiality? Are you suggesting, that Scalia, who holds the exact opposite opinions on both issues is not being partial here as well? If your argument does not work on both sides then it simply does not work. The issues do not relate to each other in anyway according to the law.



It does not work because you choose to equate Abortion and Murder as if they are the same. Though I have similar feelings, I am capable of seeing this issue from the point of view of the law (that being that legally they are not the same in any way), you apparently are not, so you are incapable of seeing the crippling flaw in your argument.

Your's is the "Apple and Oranges" argument here. The law does not see Abortion and Murder as the same, on the most basic of levels since one is not a crime and the other is.

Let me try this again. From Scalia's dissent:



Sorry, this decision throws all precedence out the window. Now only does it throw out Stanford vs. Kentucky. It also contradicts the findings in cases involving states mandating parental consent in order for a minor to obtain an abortion.

Actually to some individuals abortion and murder are quite close to the same thing. Our society is split on the abortion issue. Even most pro-choice individuals agree that abortion is not an easy choice. Yet our Supreme Court holds that at least some minors are quite capable of making this decision. Contrast abortion with cold-blooded murder. There is no argument that murder is a choice. At an early age pretty much everyone is aware that kidnapping, binding and throwing someone off a bridge is a very bad thing. Our courts have used an APA brief in a parental consent for abortion case to support the view that minors are quite capable of making an adult decision. They have used a different APA brief to decide in this juvenile death penalty case that minors are incapable of making adult decisions.

In our society choosing to have an abortion is a complex decision, choosing to kill a post delivery human is not. The court has cherry picked briefs to support their own moral values. They're legislating.

Hugo, it's like your belligerently ignoring OLS's points. He's saying that in the eyes of the law Abortion = Medical Procedure. In your eyes, Abortion = Murder. The justices have a responsibility to rule with the law, not from personal beliefs.

Let's take a look at Scalia's sited case... Here's the conclusion as summarized here:
http://www.oyez.org/oyez/resource/case/165/


The APA may be inconsistent(waiting on that evidence), but the court is not. The court upheld the notification to one parent and the 48 hour waiting period.

It is my personal belief that it has been adequately demonstrated that children change drastically once they have matured. Case in point is Daffy's Mary Bell example. Mary Bell is now a perfectly normal mother living somewhere in North England. She went from an 11-year old killer of 2 young boys in a cruel and unusual manner to becoming a productive member of society because she was given a chance to do so.

http://www.crimelibrary.com/notorious_murd.../22.html?sect=7

If you don't know the details of the case, you should know, that Mary Bell is a worse-case scenario. A absolutely twisted remorseless serial killer... who changed into a completely different woman when she had grown up. I agree with APA on this argument as it seems to be fundamentally grounded in reality. Reading Cries Unheard, which is the chronicle of one reporter's time with Mary Bell as she matured and changed into a different person, completely changed my view of underage murderers. If the line needs to be drawn, I believe 18 is the best place to draw it.

Overland Sailor wrote:



You are completely ignoring what I am saying. I never said that it was not appropriate for the judges to rule on this issue. The substance of the ruling is consistent with the age requirements in the constitution. Again, so what. Why is that relevant? My point is not the substance of the ruling. It has to do with HOW the judges got there.

Overland Sailor wrote:




What on earth are you talking about? HOW the judges arrived at their judgment has NOTHING TO DO with whether abortion equates to murder. Zip, zilch, nada. Why do you keep bringing this up?

Let me remind you of what Scalia wrote in his dissent:



The point is simply that the decision about whether to give birth to a child or have an abortion is a complicated and difficult decision. It is fraught with moral implications and has serious consequences. The decision to commit cold blooded murder is also fraught with moral implications and has serious consequences. The point that Scalia is making is that, in both cases, the minor‘s “decision” and the gravity of the consequences of that decision are analogous. The Court is making a judgment in both cases about how equipped the juvenile is mentally to make such a decision. The point I am making does not rest on an analogy between abortion and murder. Rather, it rests on an analogy between the gravity of the consequences of both abortion and murder.

If you want to refute the inconsistency that Scalia is illustrating (and that I am accusing the Court of), you have to get to the heart of the actual analogy that he is drawing. It has nothing to do with abortion equating to murder-- so stop saying that over and over. You have to make an argument that the two types of decisions (and their consequences) are somehow significantly different. If you can persuasively articulate that difference-- then you might have a shot at making a persuasive rebuttal to the point.


Which brings me to my SECOND POINT:

If there is an INCONSISTENCY in the Court’s reasoning when it comes to juveniles and the death penalty and juveniles and abortion. Then you have to ask how can that be?

How is it that a minor cannot sufficiently understand the moral implications of murder but can understand the moral implications of abortion? It is reasonable to ask how it can be that the Court can employ two different rationales to arrive at two different conclusions. If the inconsistent results are not sufficiently explained it indicates that the Court is not being objective and impartial. The Court appears to be picking a choosing rationales (regardless of consistency) to justify the end result. That is the antipathy of impartial jurisprudence.

MY ARGUMENT is that we do not hold the Legislators up to scrutiny on the basis of this type of inconsistency in the same way because they are not judges who are charged with being neutral, impartial and objective.

Overland Sailor wrote:



If you can’t see how inconsistent rationales from the Court can indicate a lack of impartiality and a lack of objectivity-- then you haven’t thought the issue through.

I was talking about how abortion and murder are different in the eyes of the law because you continue to bring up their ruling on parental notification in comparison to the dealth penalty. I was also talking specifically to your "Apples and Oranges" argument, one I see you have decided to abandon.





Actually, as I have said in multiple posts, On a personal level, I see the problem here with the Abortion ruling, not with the death penalty ruling. However, on a legal level, since the law treats these issues as completely different, they are free to treat the restrictions differently as well. I don't personally agree with it (as I have pointed out numerous times), but there is nothing wrong with it in regards to ethics and the like.



You are jumping to conclusions here. Not that I disagree with you on this point, but it could just as easily indicate incompetence, a rush to judgement, a failure to review related rulings, etc.



Your argument rests on an ASSUMPTION of impartiality. Being a member of the legal profession I would have thought you would know that assumptions don't go very far in the judicial system.



I saw them. I agreed that this was an issue in my personal view. And I explained that I believe the issue is with the Abortion ruling, not the capital punishment ruling. I also explained, that it is not wrong on a judicial level to treat these individual circumstances differently, because the law sees them as completely different.

I am still curious how this ruling is "LEGISLATING FROM THE BENCH" another point that perhaps you have decided to abandon.

Overland Sailor wrote:



If you think I have abandoned the "apples to oranges" argument, then you never understood it to begin with. You made the argument that the Court's different age requirements for abortion and the death penalty were constitutional because the Constitution itself has different age requirements for various things. I still hold to the point that one does not support the other. You are comparing a legislative document (apples) to a court ruling (oranges). Somehow you think because the court ruling has something in common with the legislative document that it is all fine and dandy-- yep constitutional because the ruling says stuff the constitution does. Add to this confusion, the entire issue was not even whether the ruling itself on the death penalty is "constitutional", rather, how the court arrived at its decision. The crux of the whole issue was whether the court was acting like a court and being impartial and objective-- or acting like a legislature and therefore having no need to at least provide a semblance of consistency. Clear now?




So you do not believe it is necessary to require consistency from our Supreme Court? Because the two subjects at issue (abortion and death penalty) are different-- the Court need not be bound by any kind of consistency of rationale? I find that difficult to believe. Consistency and a demand for justifible distinctions among similar situations is the cornerstone of a fair judiciary.




Agreed. Absolutely. It could be attributable to any of these things. But the point is that there should be a dialogue about the inconsistency. Because we should as Americans demand that our judiciary is consistent, impartial and fair in its rulings.



As a member of the legal profession I demand that there be every effort made to insure consistency or justifiable distinctions made when similar situations are addressed. As an American you should demand the same.



How can you think I have abandoned this point? Courts "legislate from the Bench" when they act like Legislators and not like Judges. I think I have made it abundantly clear how I see the justices here as not acting like judges because they do not appear to want to bother to distinguish past precedent and their different rationales where juveniles are concerned.

There’s more shifting going on than a plastered New Year’s celebrant on quicksand. First, I want to redact my statement about Stevens earlier. It’s Justice Souter that avoided the cameras when he was mugged during his daily jog as if he were the mugger.



I would cite Danforth and Belloti as examples if I were Scalia, too, as it is impossible to recall anything about himself in either ruling before his appointment.

It is true that Danforth and then Belloti upheld a teen’s unrestricted access to abortion in 1976 and 1979, striking down parental provisions drafted by states. However, Scalia glaringly omits mention of Planned Parenthood v. Casey (1992) in this context. The latest abortion ruling, Casey, narrowly upheld Roe. In Casey the Court upheld the Pennsylvania provisions requiring minors to have consent from one parent or judicial bypass. In any case, a “Constitutional right” for minors set forth in Danforth and Belloti were overruled and parental provisions upheld by (ultimately) judicial veto based on an anything from following through with the wishes of a parent to a judge’s own moral beliefs. Since Casey 20 states require minors to gain parental consent and 14 require notice. Abortion, though upheld as a Constitutional right, is effectively restricted to minors. There’s our “revisit” as it pertains to minors and abortion.



Immaterial. The Court has restricted a minor’s access to abortion for 13 years. An astute man like Scalia should be aware of this, even if he spent most of his efforts denouncing Roe in Casey. But of what consequence is omitting a little thing like a contradicting fact to your claims of the Court taking exception to abortion with minors when snarky comments are as important as referencing only cases that support your allegations?



Did you take my advice to read Saletan’s article, or the ruling for that matter? Scalia’s dissent in Roper does hack away at the Court in general for “evolving standards,” but he doesn’t restrict himself to a concept like "this Court." O’Connor is not off limits. From Scalia’s 8th footnote in Roper: