"The Blue State Court"

To read this editorial today requires that you register at the Wall Street Journal's opinionjournal.com site, which is free. The editorial is exactly on point about yesterday's Supreme Court decision, which ruled the death penalty unconstitutional for convicted criminals under the age of 18.

Whether you think that juvenile defendants below that age should or should not be subject to the death penalty, you should read the editorial so that you can get a clear sense of precisely how out of line the Supreme Court is in subverting the laws of various states. Sample:

No doubt most Americans will concede that the death penalty for 16- and 17-year-olds is a difficult moral question. That is why different U.S. states have different laws on the matter, and we'd probably oppose such executions if we sat in a legislature. But rather than defer to the will of voters as expressed through state legislatures and at least two ballot initiatives (in Arizona and Florida), Roper imposes the view of five justices that the execution of 16- and 17-year-olds is both wrong and unconstitutional. As Justice Antonin Scalia writes in a dissent that is even more pungent than his usual offerings, "The court thus proclaims itself sole arbiter of our nation's moral standards."

Justice Kennedy rests his decision on his assertion that American society has reached a "national consensus" against capital punishment for juveniles, and that laws allowing it contravene modern "standards of decency." His evidence for this "consensus" is that of the 38 states that permit capital punishment, 18 have laws prohibiting the execution of murderers under the age of 18. As we do the math, that's a minority of 47% of those states. The dozen states that have no death penalty offer no views about special immunity for juveniles--and all 12 permit 16- and 17-year-olds to be treated as adults when charged with non-capital offenses.

This idea of invoking state laws to define a "consensus" also runs up against any number of notable Supreme Court precedents, including Roe v. Wade. When Roe was decided in 1973, all 50 states had some prohibition against abortion on the books. But never mind.