The recent ruling by Kennedy and the USSC on the death penalty is frightening, not because it is bad Constitutional law, but because it is NOT Constitutional law, and makes no pretense of being such. Instead, they appeal to some "national consensus" and even seem to have made that one up on the spot. Kennedy and company did a shoddy job of lining up this lie, first inventing a national consensus against executing 17-year olds, then conceding that it doesn't exist by whining about America's refusal to ratify international treaties that forbid the practice.
George Neumayr's article in the American Spectator states as follows:
Since the justices maintain the practice of never consulting for the meaning of the Constitution the framers who actually wrote it, they made sure not to include in Roper the number of 17-year-old murderers executed at the time of the country's founding. The Supreme Court has zero interest in the America of the founders, indeed looks longingly to the Europe that the framers left for co-authorship in forming a new Constitution to supplant the framers' one. What Anthony Kennedy calls cultural evolution looks more like regression -- a return to the tyrannies of Enlightenment Europe.
The Supreme Court's judicial activists are cutting off the branch on which they sit. By rejecting the law and putting their personal opinions in its place, the justices invite the people to imitate them and disregard their decrees with the same willfulness they disregard the Constitution. If Anthony Kennedy isn't bound by the framers' words, why are the people bound by his?
The authority of Supreme Court justices derives from the authority of the Constitution: once they deny its authority, they deny their own.