They did not explain how future justices should divine America's "evolving standards," but feebly warned it must not be "reliance on personal preferences."
In keeping with this, in Stanford, Kennedy joined Scalia in declaring, "We emphatically reject petitioner's suggestion that the issues in this case permit us to apply our 'own informed judgment' regarding the desirability of permitting the death penalty for crimes by 16- and 17-year-olds."
America's "evolving standards," they ruled, could be found primarily in acts of state legislatures. Since 22 of 37 states allowing capital punishment in 1989 allowed it for both 16- and 17-year-olds, clearly America's "evolving standards" did not forbid executing juveniles.
The dissenters in Stanford suggested foreign opinion should determine U.S. constitutional standards: "Within the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved." This seemed so ludicrous in 1989 the Scalia-Kennedy opinion didn't even rebut it.
Last week, in Roper vs. Simmons, Kennedy improbably argued it was his perception that state legislatures since 1989 had demonstrated an "evolving standard" against a juvenile death penalty. He conceded, however, that of 22 states that allowed executing 16- and 17-year-olds then, 20 still do.
Even so, he claimed unilateral authority for the court to change what the Eighth Amendment means. "We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles," he said. He backed up his new case against a juvenile death penalty by citing foreign opinion.
This is exactly the raw exercise of power Story warned against, and Kennedy joined Scalia in "emphatically" rejecting in 1989.
If Kennedy and four other justices can change the meaning of the Constitution whenever their personal opinions -- or claimed perceptions of public (or foreign) opinion -- coincide, they are no longer judges but members of an uber-legislature.
If Kennedy is going to claim the authority of a legislator to act on his personal opinion or his perception of public opinion, then he should open himself to the political liability legislators face: He should resign and see if public opinion wants him back.
President Bush should accept his resignation, and nominate a replacement who respects the Constitution and actually deserves an unlimited term.