Kennedy, self-appointed discerner of the national consensus on penology, evidently considers it unimportant that the United States attached to one of the conventions language reserving the right ``to impose capital punishment ... for crimes committed by persons below eighteen years of age.'' The United States never ratified the other convention Kennedy cites. In his extra-judicial capacity as roving moralist, Kennedy sniffily disapproves of that nonratification as evidence that America is committing the cardinal sin of being out of step with ``the world community.''
Kennedy the sociologist says ``any parent knows'' and ``scientific and sociological studies'' show that people under 18 show a ``lack of maturity'' and an ``underdeveloped sense of responsibility'' and susceptibility to ``negative influences'' and a weak aptitude for ``cost-benefit analysis.'' All this means, he says, that young offenders ``cannot with reliability be classified among the worst offenders.''
Well. Is it gauche to interrupt Kennedy's seminar on adolescence with some perhaps pertinent details? The 17-year-old in the case the court was considering bragged about planning to do what he then did: He broke into a woman's home, put duct tape over her eyes and mouth, wrapped her head in a towel, bound her limbs with electrical wire, then threw her off a railroad trestle into a river where, helpless, she drowned.
Justice Scalia, joined in dissent by Justices William Rehnquist and Clarence Thomas (Justice Sandra Day O'Connor dissented separately), deplores ``the new reality that, to the extent that our Eighth Amendment decisions constitute something more than a show of hands on the current Justices' current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years).''
Kennedy occupies the seat that 52 Senate Democrats prevented Robert Bork from filling in 1987. That episode accelerated the descent into the scorched-earth partisanship that was raging in the Senate Judiciary Committee at the very moment Tuesday morning that Kennedy was presenting the court majority's policy preference as a constitutional imperative. The committee's Democrats were browbeating another appellate court nominee, foreshadowing another filibuster.
The Democrats' standard complaint is that nominees are out of the jurisprudential ``mainstream.'' If Kennedy represents the mainstream, it is time to change the shape of the river. His opinion is an intellectual train wreck, but useful as a timely warning about what happens when judicial offices are filled with injudicious people.