The death knell for Anthony Kennedy?

Voting to prohibit the death penalty for juvenile killers, Anthony Kennedy comes full circle. But did he kill any chance of becoming chief justice?

By Tim Grieve
Published March 1, 2005 5:38PM (EST)

Two years ago, a condemned killer named Kevin Nigel Stanford asked the U.S. Supreme Court to spare his life on the grounds that he was only 17 when he committed the crime for which he had been sentenced to die. Five justices refused Stanford's plea, and Anthony Kennedy was one of them.

This morning, Kennedy came full circle. The Supreme Court ruled 5-4 today that states may no longer execute juvenile killers, and Kennedy provided the decisive vote. Writing for the majority, Kennedy said: "Neither retribution nor deterrence provides adequate justification for imposing the death penalty on juvenile offenders."

With today's decision, Kennedy may finally replace David Souter as the Republican-appointed justice Republicans hate the most. Kennedy has frequently disappointed conservatives. He was a critical vote in upholding Roe vs. Wade in 1992's Planned Parenthood vs. Casey, and he wrote the opinion striking down sodomy laws in 2003's Lawrence vs. Texas. Today's ruling isn't likely to inspire the kind of fury those wrought; it's hard to imagine that conservatives care as much about executing child killers as they do about outlawing abortion and gay sex. But the reasoning behind Kennedy's ruling? That's a different matter.

The legality of executing juveniles turns on the interpretation of the Eighth Amendment's prohibition against "cruel and unusual punishment." When the Supreme Court heard oral argument on today's case, Kennedy asked lawyers to focus for a moment not on the "cruel" but on the "unusual" part of that prohibition: "There is substantial demonstration that the world is against us, at least among the leaders of the European Union," Kennedy said in court that day. "Does that have a bearing on whether this is unusual?"

With today's decision, he answered that question in the affirmative. "Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty," Kennedy wrote. Kennedy noted that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo and China. And, Kennedy said, each member of this rogue's gallery has either "abolished capital punishment or made public disavowal of the practice."

While admitting that international opinion is not "controlling" on U.S. constitutional interpretation, Kennedy said it was "proper" to acknowledge the views of the international community. Along the way, he cited the United Nations Convention on the Rights of the Child, a document ratified by every country in the world except Somalia . . . and the United States.

Antonin Scalia was predictably apoplectic in dissent. Scalia said that the court should either reevaluate all sorts of legal issues -- from abortion rights to religious freedom -- "in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry."

The paranoid right, forever afraid that the Democrats are plotting to hand Kofi Annan the keys to the White House, will surely follow Scalia into battle against Kennedy now. The mild-mannered man from Sacramento, Calif., was probably never George Bush's first pick to replace William Rehnquist as chief justice: He's simply not a justice in the Scalia/Thomas mold that the president favors. If the right gets its way -- and with this administration, it usually does -- today's decision will knock Kennedy off of Bush's list altogether.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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