EVEN AS Chief Justice William Rehnquist is dying from terminal cancer, Senate Democrats are vowing to block President Bush's judicial nominees. Republicans, on the other hand, claim they have a "nuclear option" to override the Dems. What the heck is going on here?
Part of this partisan one-upsmanship stems simply from policy differences over how judges will decide issues like abortion, gay marriage and public religious displays. But that is a superficial way to look at the dispute. Rather, at the heart of the debate is what we think the proper job of judges should be. Conservatives believe that until our policy preferences are duly enacted into law by democratic processes, judges should not substitute their policy choices for us.
The Supreme Court's decision earlier this month banning the death penalty for juvenile murderers clearly illustrates this conundrum. In that case, the Court was asked to decide whether Christopher Simmons, now 29 years old, should be executed for kidnapping a woman, binding her with duct tape and drowning her in a river when he was 17. The only guidance we have is the Constitution's Eighth Amendment prohibition on "cruel and unusual punishments."
Is executing Simmons, in light of his heinous crime, "cruel and unusual?" It's almost impossible to say. In the absence of any solid authority in law, the Court instead relied on the curious notion that there is a "national consensus" against executing juvenile murderers, and that that "consensus" should dictate what the law is.
From our recent debate over the "consensus clause," University students are experts on what "consensus" is -- more expert, in fact, than the Supreme Court. We understand that a "consensus" derives from some legitimate and structured process by which the people express their policy preferences: a vote. Thus, the "consensus clause" proposed that the Honor Code's single sanction could be changed only by a vote of more than 50 percent of the entire student body.
With respect to the death penalty, however, the Court cannot properly claim a "national consensus" under any tortured meaning of the term. To wit, how can the five justices who voted against juvenile executions be so sure that they correctly identified the "national consensus," and that the other four did not? As Justice Antonin Scalia said in his dissent, how can the Court declare a "national consensus" when 20 states still allow juvenile executions?
The age-old wisdom -- a "consensus," if you will -- tells us that it's not whether you win or lose, it's how you play the game. What is clear from the Court's ruling is that, under the guise of an elusive "national consensus," the majority saw the result it wanted andcontorted the law to fit the endgame.
There is nothing particularly wrong with the majority's policy preference; executing convicts for murders they committed as minors may very well be morally wrong in many cases. But that should be a judgment made not by five unelected septuagenarians in black robes, but by Congress. In that sense, the Court is correct to say that a "national consensus" should decide the issue. It is wrong, however, for the Court to unilaterally declare, à la Louis XIV, "le consensus national c'est moi."
So much for the conservative view. What is the liberal view? Liberals point to cases like Brown v. Board to show that the Court could be a bulwark for civil rights when Congress could not be. But the Court is wrong as often as it is right. After all, it upheld the notions of "separate but equal" (Plessy v. Ferguson), treating blacks as property (Dred Scott v. Sanford), and interning Japanese Americans (Korematsu). On top of all that, as liberals are fond of fuming over, the Court also put George W. Bush in office.
Whether juvenile murderers should be executed, whether abortion should be legal or whether gays should be able to marry are all tough questions. Given that we have a Supreme Court that can't even understand the meaning of a "consensus," much less identify what it is on any given issue, I'll put my faith in the people to decide these matters.
Eric Wang's column appears Wednesdays in The Cavalier Daily. He can be reached at ewang@cavalierdaily.com.
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