But for the Court to overturn its own precedents, such as the ones allowing execution in these cases, it must find not just a national consensus against the practice, but an overwhelming one. Instead, the evidence showed that only 18 of the 38 states that allow capital punishment have outlawed such executions -- hardly a consensus, much less an overwhelming one. Indeed, if an overwhelming national consensus has in fact emerged, why has the Court decided to preempt juries -- who presumably embody that consensus -- in these cases?
What it boils down to is that the Court substituted its own judgment for that of the people. In so doing, the Court, as Justice Scalia also cogently demonstrated, cherry-picked the evidence and ignored that contrary to its desired findings.
As just one example, the Court accepted the American Psychological Association's (APA) claim that "scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions." But this same APA made a completely contradictory claim in a case previously considered by the Court, in which it argued that there is a "rich body of research" proving that juveniles are capable of deciding whether to get an abortion without parental advice.
Regardless, I would much rather juries in our local communities making these determinations than five of nine self-appointed black-robed moral arbiters, especially considering that under current law, juries are required to take into account the murderer's age as a mitigating factor. If local juries can be entrusted with determining whether such children should be convicted of murder, why can't they decide whether they should be executed?
There is at least an additional column's worth of other problems with the Court's decision, such as its obscene, arbitrary and opportunistically convenient reference to foreign standards, and its misanalysis of the deterrence argument. I also note the incredible irony of the Court -- in the process of proclaiming itself the final moral arbiter -- undermining its own authority in rewarding, instead of reprimanding, the Missouri Supreme Court for flagrantly ignoring its (the United States Supreme Court's) precedents.
The Court's disturbing decision underscores the growing relevance and urgency of my friend Mark Levin's "Men In Black," which I respectfully urge you again to purchase.
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