Supreme Court opening?

The Journal Sentinel (Milwaukee, WI)

October 5, 2004

Editorial

In its term that began this week, the nation’s top court gets chances to make America fair­er by out­law­ing the death penal­ty for crimes com­mit­ted by 16- and 17-year-olds, amend­ing fed­er­al sen­tenc­ing prac­tices that yield over­ly long prison stays, and bar­ring the inspec­tion of stopped cars by drug-sniff­ing dogs with­out rea­son­able sus­pi­cion of wrong­do­ing.

Meanwhile, court watch­ers would not be sur­prised if this term made big news in anoth­er way: the retire­ment of a jus­tice. The aging Supreme Court has not changed per­son­nel in more than 10 years — the longest such spell since the 1820s. This antic­i­pat­ed devel­op­ment under­scores the impor­tance of the cur­rent race for the White House, whose out­come could deter­mine the next appointee to the court.

Two years ago, the court at last barred the par­tic­u­lar­ly bar­bar­ic prac­tice of exe­cut­ing men­tal­ly retard­ed defen­dants. In doing so, the court reversed an ear­li­er rul­ing with the expla­na­tion that what con­sti­tutes ​“cru­el and unusu­al pun­ish­ment,” which the Constitution for­bids, evolves. National and world stan­dards had changed to the point where the exe­cu­tion of adults with the minds of chil­dren was now con­sid­ered cru­el and unusu­al, the court rea­soned.

That same log­ic should apply for actu­al chil­dren. In 1988 the court barred the exe­cu­tion of peo­ple who were 15 at the time of their crimes, but the fol­low­ing year per­mit­ted the death penal­ty for 16- and 17-year-olds — a prac­tice now at odds with world and even nation­al stan­dards. Most states, as well as the fed­er­al gov­ern­ment, bar exe­cu­tions either alto­geth­er or just of minors. The court should align itself with those stan­dards.

The jus­tices have already heard argu­ments in the court’s most urgent case. In a case from Washington state last year, the court nar­row­ly — and wise­ly — ruled that the right to a tri­al by jury means that juries, not judges, must find facts that increase penal­ties beyond the max­i­mum. That rul­ing threw fed­er­al sen­tenc­ing guide­lines into dis­ar­ray. Lower courts dis­agree as to whether the Washington rul­ing is rel­e­vant. The high court will clar­i­fy the sit­u­a­tion — we hope in a way that will mol­li­fy what judges and lawyers alike have char­ac­ter­ized as the exces­sive harsh­ness of those guide­lines.

The drug-sniff­ing case involves an Illinois traf­fic stop, in which the defen­dant explic­it­ly declined to con­sent to a search. The court must pro­tect indi­vid­ual lib­er­ty and not per­mit this exam­ple of a war­rant­less search.

The court will deal with fed­er­al­ism, civ­il rights, prop­er­ty rights and a host of oth­er issues this term — in a man­ner that advances fair­ness and jus­tice, we hope.

The lack of turnover means an aging court. At 56, Clarence Thomas is the court’s young­ster. The oth­er jus­tices are at least 65, with John Paul Stevens lead­ing the way at 84. Behind him are Chief Justice William Rehnquist, 80, and Sandra Day O’Connor, 74.

So there’s a good chance that fill­ing a Supreme Court vacan­cy will fall in 2005 to the win­ner of the cur­rent race for the White House — a fac­tor vot­ers must weigh this November.