Now that he has made himself an uber-legislator, Supreme Court Justice Anthony Kennedy should do as lesser legislators do. He should stand for re-election.
What I mean is, he should resign -- and see if the president nominates him again, or the Senate confirms him.
The Constitution, of course, sets no term limit for justices. They can resign, however, at any time.
In explaining why the Framers gave justices unlimited terms, Justice Joseph Story (a Madison nominee) ironically pointed to the precise reason Justice Kennedy should now limit his own term: He has put his personal interpretation of popular opinion above our written Constitution.
That's the very sin the Framers feared elected politicians would commit. To balance it, they gave justices indefinite tenure, hoping they would check power-hungry politicians by following only the Constitution as it was first written or duly amended.
For if justices with limited terms interpreted the Constitution according to their own perceptions of popular opinion, asked Story, would it not make "at different times the most opposite commands?" Would it not "erect, behind the Constitution, a power unknown, and unprovided for by the Constitution, and greater than itself?"
Two opinions rendered 16 years apart demonstrate how Justice Kennedy, despite lifetime tenure, behaves like a legislator, not a judge, and commits the very abuse Story describes. In both cases, the question was whether the Eighth Amendment ban on "cruel and unusual punishment" prohibits states from executing killers who commit murder before they are 18.
In 1989, Kennedy said no. Last week, he said yes.
In 1989, Kennedy embraced arguments made by Justice Antonin Scalia. Last week, he rejected the same arguments -- made again by Scalia.
Americans have not amended the Eighth Amendment since 1989. But, thanks to Kennedy and four other justices who share his current personal opinion, the Eighth Amendment now means the opposite of what it meant in 1989 (and in 1789), insofar as executing 17-year-old killers is concerned.
In the 1989 case, Stanford vs. Kentucky, two teenage murderers appealed their death sentences, pointing to the 1958 case, Trop vs. Dulles. In Trop, a World War II Army deserter argued that depriving him of U.S. citizenship was "cruel and unusual" punishment for wartime desertion. It was a long shot: The penalty had been enforced unchallenged since the Civil War.
But a four-justice plurality in Trop ruled the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."
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.