Evolving Standards of Decency

Bill Kristol has a great piece on the schizophrenia that is otherwise known as the judiciary in America. He begins like this:

THANK GOD FOR OUR JUDGES. (Oops! Sorry. No offense, your honors. I didn't mean to write "God." Or at least I didn't mean anything specific or exclusionary or sectarian or unconstitutional by writing "God." It's just an expression I occasionally use. It does go way back in U.S. history. I hope it's okay.)

Anyway. Thank God for our robed masters. If it weren't for them, Christopher Simmons might soon be executed. In September 1993, seven months shy of his 18th birthday, Simmons decided it would be interesting to kill someone. He told his buddies they could get away with it because they were still minors. He broke into the house of Shirley Crook in Jefferson County, Missouri, bound her hands and feet, drove her to a bridge, covered her face with tape, and threw her into the Meramec River, where she drowned. He confessed to the crime, and was sentenced to death according to the laws of Missouri.

Last month the Supreme Court saved Simmons's life. The citizens, legislators, and governor of Missouri (and those of 19 other states) had, it turned out, fallen grievously and unconstitutionally behind "the evolving standards of decency that mark a maturing society." Five justices decided that the Constitution prevented anyone under the age of 18 from being sentenced to death. So Christopher Simmons will live.

And then wraps it up this way:

So our judges deserve some criticism. But we should not be too harsh. For example, it would be wrong to suggest, as some conservatives have, that our judicial elite is systematically biased against "life." After all, they have saved the life of Christopher Simmons. It would be wrong to argue, as some critics have, that our judges systematically give too much weight to the husband's wishes in situations like Terri Schiavo's. After all, our judges have for three decades given husbands (or fathers) no standing at all to participate in the decision whether to kill their unborn children. It would be wrong to claim that our judges don't take seriously legislation passed by the elected representatives of the people. After all, our judges are committed to upholding the "rule of law"--though not, perhaps, the rule of actual laws passed by actual lawmakers. And it would be wrong to accuse our judges of being heartless. After all, Judges Carnes and Hull of the 11th U.S. Circuit told us, "We all have our own family, our own loved ones, and our own children."

So do we all. They deserve a judiciary that is respectful of democratic self-government and committed to a genuine constitutionalism. The Bush administration should nominate such judges, and Congress should confirm them. And the president and Congress should lead a serious national debate on the distinction between judicial independence and judicial arrogance, and on the difference between judicial review and judicial supremacy. After all, we are a "maturing society," as the Supreme Court has told us. Perhaps it is time, in mature reaction to this latest installment of what Hugh Hewitt has called a "robed charade," to rise up against our robed masters, and choose to govern ourselves. Call it Terri's revolution.

For all the tragedy that has come out of the Schiavo case, I think there will be some very much needed serious discussions about the proper role of the judiciary in our society. They were never intended by our Founders to be the most powerful branch of our government, but have chosen to wrest that control from the executive and legislative branches. Somehow they must be reined in.