The Supreme Court is out of control

The Supreme Court is out of control. In yet another usurpation of states' rights, the Supreme Court has decreed that the death penalty for those under the arbitrary age of 18 is "cruel and unusual punishment". Their reasoning: "most states" (3/5ths) don't allow juvenile execution and that "the trend" is to abolish the practice.

Scalia dissented:

"The court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter: 'In the end our own judgment will be brought to bear on the question of the acceptability of the death penalty,' he wrote in a 24-page dissent.

"The court thus proclaims itself sole arbiter of our nation's moral standards," Scalia wrote.

Professor Bainbridge comments:

Once again, nine old men and women in robes have elevated themselves into a super-legislature in which they have exercised privileges they deny to our elected representatives. So much for having a democracy. Indeed, at this rate, so much for having a republic.

He also has more here.

Update: Power Line comments:

In my view, the reliance of foreign law and practice is a symptom of the Court's problem, not the problem itself. The Court has appropriated from the American people the role of social arbiter. Thus, it strikes down longstanding policies and practices adopted through the democratic process on the grounds that five or more Justices personally don't approve. This creates a question of legitimacy which causes the Justices to scrounge for support. Since the Justices preferences often don't correspond to the preferences of majorities here, they naturally look to Europe. They lack the political savvy to realize that doing so only makes their work seem even less legitimate.

Or perhaps I'm completely wrong. Maybe the offending Justices don't really care about whether the Court is perceived as legitimate, and just refer to international stuff because they are trained to cite things.

HINDROCKET adds: This is very bad. It's also quite odd: The Supreme Court is disdainful of public opinion in the U.S. as expressed by the laws passed by Congress and the state legislatures, but respectful of public opinion in Europe. I can understand the Washington social structure within which this world-view makes sense, but can anyone articulate a philosophy of jurisprudence in which European opinion, however manifested, is given priority over American opinion, as expressed in laws passed by legislators?

They also quote more of Scalia's dissent:

The Court thus proclaims itself sole arbiter of our Nation's moral standards--and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

Update: Glenn links to the Roper v Simmons decision (PDF), and to Orin Kerr, who writes:

As someone who greatly values stare decisis, I was disappointed by Justice Kennedy's majority opinion. There just isn't much there to justify overruling a 16-year-old precedent and striking down 18 [thought it was 19?] state laws. I'm not sure about the juvenile death penalty as a matter of policy, but I found Justice Scalia's powerful dissent pretty tough to refute as a matter of constitutional law.

Definitely read the rest for some history as well as analysis of the future direction of the court.

Update: Country Store rounds up some material.

Update: PoliPundit has had some good posts (one, two, three) on this, particularly the last one.

Update: I'm posting new things here.