Light On Dark Water

Self-Anointed Solomons

Always ready to detect any alarming trend, I must say that one of the more alarming was in evidence this past week, in the form of the Supreme Court’s decision finding it impermissible to impose capital punishment for crimes committed when the perpetrator was under the age of eighteen. I have no quarrel with the result of the decision, but the reasoning by which it was reached, and still more its reception, are discouraging for the future of self-government.

Some ten years ago I wrote what I consider my best essay for Caelum et Terra, “Nothing at the Center” (which thanks to my gift for procrastination is not to be found in the online C&T archive). The essay was a sort of rambling rumination about the absence of any fixed moral center in our form of government; the founding fathers left us a wonderful machine for self-government, but had little to say about first principles, and so we, having lost our consensus about first principles, are not sure what we ought to be doing with the machinery and are casting about for guidance. In our confusion we are pushing the Supreme Court into a role it was never meant to have, that of final arbiter of right and wrong—of principles, not just of law.

If my own hasty reading of the opinion and much of the commentary on it are accurate, some members of the Court, particularly Justice Kennedy, have settled comfortably into this new role. In that C&T essay I had some sarcastic things to say about Justice Kennedy’s now-famous declaration that everyone has the right to “define [his] own concept of existence.” He continues his dreamy approach to the law in this new decision, stating of the under-eighteen murderer that “the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”

This is the sort of decision that, like the age for voting or for military service, should be made by legislatures (whether state or federal), if it is not made in the Constitution (or its amendments). Kennedy and the four justices who concur with him have simply taken it upon themselves to make a personal judgment on the matter—to call it a moral judgment is to give it more weight than it really has—and their judgment law. Their reasons are not all bad by any means, but they make little meaningful reference to the Constitution, and none to any objective standard of right and wrong. The closest they come to the latter is the invocation of “evolving standards of decency.” It seems unnecessary to point out the folly and even crimes latent in that approach.

But people have been talking about judicial usurpation for a generation now, and this instance is no more striking than many others. What interests and alarms me most is the public reaction. Almost everyone whose reaction I’ve heard—the exception being certain conservative journalists—has talked of it entirely in terms of whether the result is correct. Almost no one seems to consider the implications of the Court’s claim to have the power to make it.

I think most Americans have now, as the psychological term puts it, “internalized” the idea that the Supreme Court is our ultimate moral authority. They, and at least five justices, see the Court’s role as being like that of King Solomon: they are the wise rulers to whom the people bring their disputes for resolution. The appeal to shared objective moral principles is disallowed or at least suspect, and the appeal to the actual text of the Constitution is made moot by the idea that its meaning is infinitely malleable. But order must be preserved, and so we look to what is in essence a committee of lawyers whose passing opinions become law, beyond which there is no appeal.

Rule by King Solomon was all very well when Solomon listened to God. What should we expect of a small group of self-anointed Solomons whose final allegiance seems to be nothing more than their own sense of what is, to use the word favored by those who do not want to admit that they are making moral judgments, inappropriate? And who will call them to account for their own inappropriate behavior?