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A Very Poor Decision

The recent overruling of Roe vs Wade is not the only troubling decision the Supreme Court has recently made

On April 22, 2021, the U.S. Supreme Court (the Court) ruled that a judge may--without establishing that juvenile defenders are beyond social reconstruction--sentence them to die in prison. This decision goes beyond issues of “court balance,” or the liberal and conservative orientation of the Court, and strikes at the ease with which recent precedents can be seemingly bypassed, speaks to the cruelty the decision nurtures, frowns on our boasts about our commitments to the protection of human rights, and illustrates the confining intellectual and cultural reach that informs the decisions of the Court.

For those who wish to find explanation for the decision in matters of court balance or the liberal-conservative orientation of the Court, one can point to the tenure of Justice Anthony M. Kennedy, during which limits were brought to bear on the severest penalties that were visited on juveniles for the crimes they committed. Those limits included the death penalty that was, in 2005, adjudged to be unconstitutional, when applied to juvenile offenders, and mandatory life-without-parole sentence (LWPS) which, in 2012, was rejected, for juveniles. In 2016, the Court went further and made its 2012 decision respecting LWPS retroactive. In 2018, Justice Kennedy retired, and the new Court last year reversed the encouraging direction in which it was seemingly tending, in the area of criminal punishment for juveniles.

More is at stake. The new Court, moving outside the framework of liberal-conservative orientation (by way of the decision under discussion), has begun to indicate that it is disposed to make light of the revered tradition of stare decisis, as seen in its 2022 decision on Roe v. Wade. This behavior has been pursued, until the Roe decision, not so much by the sidestepping of recent decisions--as noted by Justice Sonia M. Sotomayor, or by resorting to “strained reasoning,” as observed by Justice Clarence Thomas, but in doing so without explicitly acknowledging what is being done. This course of adjudicative conduct lends itself to imprecision, the sacrificing of social stability, which so much depends on that precision, and could call into being undue political manipulations that generally operate to the disadvantage of those who are the least culturally and socially favored.

The decision of the Court does not merely reverse a precedent. It has likewise changed a direction toward which it was trending, for nearly twenty years: one of a less harsh and more humane treatment of juvenile offenders. The Court has now set the course for lower court judges--and itself--to shape a more cruel fate for juveniles and to mold reduced opportunities for the unfolding of their personal and social development.

Our society boasts that it is an exemplar of human rights protection and the universal values these rights purportedly espouse. Article 37 (a) of the 1989 Convention on the Rights of the Child (juveniles) states that neither “capital punishment nor life imprisonment without the possibility of release [parole] shall be imposed for offenses committed by persons below eighteen years of age.” Brett Jones, the juvenile involved in the above-mentioned 2021 Court decision (after having been convicted for killing his grandfather in 2004) was 15 years old, when his criminal conduct took place. This human rights convention has been the most widely ratified international human rights instrument and, therefore, has the widest claim to represent universal values, including those which undergird the convention: loyalty to the principle that all decisions concerning juveniles must be based on “the best interest of the child.” It came into force in 1990--meaning it had support from enough countries that enforcement of its terms could begin from that date.

The Court’s decision is in direct contravention of the convention’s terms, leaving Bett Jones without the protection to which he is entitled. One could, of course, argue that US—along with South Sudan and Somalia—has not ratified the convention and, thus, its terms are not binding on Washington. Such an argument flies in the face of two facts: the U.S. has never refused to charge countries with human rights violations, based on whether or not such countries have ratified specific human rights instruments. All the U.S. generally looks at is whether an applicable treaty or practice has been widely accepted. More important, Washington cannot exempt itself from the universal values the instrument is supposed to represent, without also indefensibly saying those values are universal, and thus binding on it, only if, and when, the U.S. says they are.

This brings us to the confining cultural and intellectual reach of the information the Court has been using (with few exceptions) to construct its decisions. A founding father, James Madison, in Federalist 63, noted the potential damage of such confinement. In his own words (and he was dealing with the Senate, but his views are equally applicable to the Court), he argued that an “attention to the Judgement of other nations is important to every government for two reasons…” First, independent of the merits of a specific plan or measure, “it is desirable, on various accounts, that [said plan] should appear to other nations as the offspring of a wise and honorable policy,” especially, in the view of this writer, for a country like the U.S., that has sought and exercised leadership in the world. Second, “in doubtful cases…where national councils may be warped by some strong passion or momentary interest…the  opinion of an impartial world may be the best guide that can be followed.” He then goes on to ask, rhetorically, “how many errors …would [US] not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased [those not directly involved in strong passions or momentary interests] part of mankind?” Is there any doubt that the judicial policy that has been pronounced by the Court in its April 2021 decision might have been different if the reach of the intellectual and cultural information it used were broader, if that decision were informed by the unbiased position of humankind, as encompassed by the Convention on the Rights of the Child? Can one objectively say that the decision of the Court comports with the value and principle of loyalty to “the best interest of the child”? Further, is the decision of the Court one which is likely to appear to the 197 countries that have accepted the convention as the expression of a wise and honorable policy?

Not only has the Court been generally reluctant to canvass the unbiased part of humankind; it has been setting an unflattering example, especially since the 1980s, for prospective lawyers and would-be judges to do likewise. The limited extent to which the most important post-1945 body of moral and legal entitlements—human rights—are canvassed by the Court in making its decisions furnishes the best evidence of that example. The “strong passion or momentary interest” that has “warped” the national councils of the US (the US Senate, as in the case of the 1979 Convention of the Elimination of All Forms of Discrimination Against Women, has never even called up the 1989 convention for consideration), could have been overcome had the Court looked to international human rights law in formulating its judicial policy. A “decent respect” for the opinions of humankind should be part of our twenty-first century mode of being.