Impeach Anthony Kennedy
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.