WASHINGTON -- In 1992, before delivering the Supreme Court's ruling in an abortion case, Justice Anthony Kennedy, who has a penchant for self-dramatization, stood with a journalist observing rival groups of demonstrators and mused: ``Sometimes you don't know if you're Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line.'' Or perhaps you are a would-be legislator, a dilettante sociologist and freelance moralist, disguised as a judge.
Last Tuesday Kennedy played those three roles when, in yet another 5-4 decision, the court declared it unconstitutional to execute persons who murder when under 18. Such executions, it said, violate the Eighth Amendment proscription of ``cruel and unusual'' punishments because ... well, Kennedy's opinion, in which Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens joined, is a tossed salad of reasons why those five think the court had a duty to do what state legislatures have the rightful power and, arguably, the moral responsibility to do.
Although the court rendered an opposite decision just 16 years ago, Kennedy says the nation's ``evolving standards of decency'' now rank such executions as cruel and unusual. One proof of this, he says, is:
Of the 38 states that have capital punishment, 18 bar executions of those who murder before age 18, five more than in 1989. So he constructs a ``national consensus'' against capital punishment of juvenile offenders by adding a minority of the states with capital punishment to the 12 states that have decided ``that the death penalty is inappropriate for all offenders.''
But ``inappropriate'' is not a synonym for ``unconstitutional.'' Kennedy simply assumes that those 12 states must consider all capital punishment unconstitutional, not just wrong or ineffective or more trouble than it is worth -- three descriptions that are not synonymous with ``unconstitutional.''
While discussing America's ``evolving standards of decency,'' Kennedy announces: ``It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.'' Why is that proper when construing the U.S. Constitution? He is remarkably unclear about that. He says two international conventions forbid executions of persons who committed their crimes as juveniles. That, he thinks, somehow illuminates the meaning of the Eighth Amendment.