Wednesday, March 02, 2005

Impeach Anthony Kennedy

In a 5-4 decision, the Supreme Court outlawed the executions of 72 juveniles convicted of murder. Reagan-appointee Anthony Kennedy, writing for the majority, said that many juveniles lack the intellectual acumen and maturity to understand the ramifications of their actions. Really, if a 17-year-old doesn’t know that murder is wrong, we’ve got bigger problems than the psychotic ravings of unaccountable judges who are forever trapped in adolescence themselves.

To buttress his case, Kennedy said that a “national consensus exists” against juvenile executions and then cited "enlightened" foreign states that have banned the practice. Kennedy wrote, “It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime."

One could see this trend coming. In oral argument last October, Kennedy asked whether international opposition to juvenile executions should influence how the SCOTUS interprets the constitutional prohibition of cruel and unusual punishment.

In 2002, Ford-appointee John Paul Stevens cited international opinion in his majority opinion striking down the death penalty for mentally retarded persons. In another death penalty case, Clinton-appointee Stephen Breyer cited three foreign courts in his decision. And Kennedy himself cited a decision by the European Court of Human Rights in the Laurence case that legalized sodomy.

What is to be done about such unabashed judicial activism? At least two things: 1) Congress should claim its authority under the constitution to limit the appellate jurisdiction of federal courts. In short, our elected representatives should seize back power stolen by the court. Under our constitution, the court is NOT the sole arbiter of constitutionality, and it is long past time for the congress to reclaim its legitimate prerogatives. 2) There are currently six Supreme Court justices who support citing international law in their decisions. Those justices should be impeached.

In Federalist 81, Hamilton made the case for legislative supremacy. Hamilton wrote, "Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree affect the order of the political system." Hamilton did not foresee the specter of judicial activism because he assumed that impeachment would serve as a check on rogue judges. Hamilton wrote, "There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption by degrading them from their stations."

Ultimately, it is up to Congress to determine the proper grounds for impeachment. Liberal scholar Raoul Berger said "impeachment itself was conceived because the objects of impeachment for one reason or another were beyond the reach of ordinary criminal redress." Currently, Justice Kennedy and his cohorts are operating above the law. It is time to bring them back to reality.

9 Comments:

Blogger Mark Ivey said...

Hey Darrell,

I like where you're going with this. Now, to me it would seem that citation of foreign courts should serve as evidence of agency for a foreign power and open them to censure on those grounds.

BTW, I was just up in Louisville for the Ohio Valley Military show and a gun show co-located there at the Kentuky Fair & Expo Center. I didn't realize you were located in KY, or I would have stopped by for a visit. Perhaps next year.

Excellent post!
Mark Godfrey

10:13 AM  
Anonymous Anonymous said...

Not too sure whether today's "Impeach Anthony Kennedy" is simply a kvetch against judicial activism or something all-too like the "nuke Iran" comments we get regularly from the Julius Streichers of the brownshirt right. I'm afraid I'd be a bit disappointed to learn that it's the latter. Somehow I just don't picture Jesus with the crowd outside the county courthouse screaming "string 'em up". I mean haven't we sufficiently befouled ourselves spiritually with imbecile enthusiasms for abortion, hunting and warmoggering in this country that we can't manage just a shade less of the same for eye-for-an-eye justice? Where's H. L. Mencken when we need him?

John Lowell

1:10 AM  
Blogger Darrell said...

Thanks for the kind comments, Mark.

I figured to get some dissent from you on this one, John. As a faithful Catholic, I'm certain your position vis a vis capital punishment is different from my own. A blanket rejection of capital punishment shows a certain moral obtuseness, I believe, in that it denigrates the life of a vicitim created in the image of God (Gen. 9:6). Having said that, I am certainly open to persausion on the issue--particularly some of these tangential questions about the execution of minors, those with mental defects, etc.

My real concern with the post, though, is judicial activism. Ultimately, the questions involved here need to be determined by the states. A few years back, it looked like the Court might be moving in a direction receptive to restoring the rights of states, but I should have known better than to think it was truly a trend.

5:31 AM  
Anonymous Anonymous said...

Hello Darrell,

So it is with judicial activism that you are concerned here primarily after all, not to the exclusion of the capital punishment question perhaps, but it's mainly the activism? There are clearly two topics in play. What I failed to mention in my earlier post was my essential agreement with you respecting an overly assertive judiciary, so focused was I on the matter of violence.

I'm interested in the comment you make regarding the denegration of the person in instances of capital crime. You would seem to be saying that a society's acceptance of the death penalty somehow elevates it's moral status per se, that by not providing for it, a community trivializes the suffering and the person of a victim, one, after all, made the image of God.

I would be at a loss to see the necessity of a connection between these two elements, Darrell. The imposition of a death penalty sanctifies a community more than the imposition of, say, an uncommutable life sentence? The guaranteed restraint of the perpetrator in the interests of all is insufficient to satisfy the requirements of justice? Even if we were to say that it were not, which we won't, one would need to take into account the responsibility of the community toward itself, one equally as great as the one it bears toward the victim. How much sanctity does a community realize in the act of executing of a murderer, how much the executioner? If the issue is most importantly life in Christ, it seems to me that a society fails all concerned miserably, victim included, by implementing violence, the very method of the criminal, as the solution to its problems. Is the society itself not made a criminal thereby?

The morality of the death penalty is not intrinsic, it resides solely in its future protection of a society. In the past such protection could not always be assured short of the death of the criminal; today it is met routinely with measures far less drastic. What remains is blood lust or a wholly unworthy spirit of revenge and they are the opposite of sanctity.

So my sense of the matter would not permit of my making distinctions respecting juveniles, the emotionally underdeveloped, etc., Darrell. In my view, today, no apologetic can justify the death penalty and for the very reason you cited initially: That we are dealing, even in the case of a criminal, with a human being, one made in the image of God, and similarly with a human victim and with a society of human beings. Jesus Christ died an executed criminal. Were the Romans more virtuous for crucifying Him?

Yours In The Holy Trinity,

John Lowell

6:48 PM  
Anonymous Anonymous said...

Just a few thoughts.

First, despite all your hopes au contrair, neither Anthony M. Kennedy, nor any other of the five justices, are going to be impeached for citing international trends in jurisprudence.

Secondly, neither should they be. Like it or not, the trend [and inevitability] is globalization with all the powers of the earth becoming linked through mutual self-interest. As such, it is appropriate that we look to international trends such as the ones cited in recent Supreme Court cases.

Third, the legislative branches of the states, and certainly the Congress itself, have generally shown themselves incapable of passing prudent and fair legislation--witness the "Patriot Act," which they didn't even bother to "read"--and of course, anytime civil rights of minorities have been left to the hands of the majority, oppression has inevitably occured.

Therefore it is the province of the courts, especially in light of the current maniac of an executive branch [talk about power grabs!] which unfortunately presides over this mess of a country we are in, to equitably distribute rights and responsibilities to all.

All this rabid, so-called Christian right-wing nonsense is going to create a liberal backlash the likes of which has not been since FDR.

Then perhaps we can have common sense after this new, medieval dark-age passes into the equally inevitable lightness.

2:25 PM  
Anonymous Anonymous said...

This comment has been removed by a blog administrator.

7:07 PM  
Blogger Darrell said...

1) You are assuredly correct that neither Justice Kennedy nor any of the assorted gaggle of legislators on the Supreme Court will so much as have their patties smacked. The reason, of course, is that Republicans are gutless.

2) So we are inevitably moving into John Lennon's utopia, are we? I'm not so sure, but if we are going to look to international trends, might I suggest adopting Saudi means of dealing with theft. And, while we're at it, let us admit that the Taliban did have a nice way of dealing with idolatry--maybe we should look to Islamic jurisprudence on that question. Really, I can't tell if you are writing with tongue-in-cheek or if you actually believe that "it is appropriate that we look to international trends such as the ones cited in recent Supreme Court cases."

3) If you don't like what Congres does, you can vote for someone else in two years. The Brahmins who have shredded the constitution have absolute immunity from such sanction. Thanks to original sin, there is a need for checks-and-balnaces, not judicial dictatorship.

4) Read my blog, and you will see that I have plenty to say about the "Christian Right." But to think the country is in the hands of such people is juvenile. Conservative Christians slavishly yield their allegiance to the GOP for less than thirty pieces of silver and then are jilted at the altar.

7:35 PM  
Anonymous Anonymous said...

this is pure flame - you're an idiot!

4:21 PM  
Blogger Darrell said...

Now that is what I call thoughtful analysis. What are you, about four?

8:46 PM  

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