Filling the next vacancy


By a one-vote margin, the Supreme Court last week reversed a Missouri jury’s decision to sentence a 17 year old to death for kidnapping and drowning an innocent woman. According to Justice Kennedy, writing for the majority in Roper v. Simmons, the Missouri jury’s decision to sentence Simmons to death violated “evolving standards of decency that mark the progress of a maturing society.” Observing that “in the end, [the Court’s] own judgment will be brought to bear on the acceptability of the death penalty,” Kennedy rescued the benighted Missourians from their ignorance.

Now that the Supreme Court has shouldered the responsibility of teaching America how to be decent, I have a suggestion for President Bush, should he need to fill a vacancy on the Court. The Court’s new “decency” doctrine – essentially “we think it indecent, ergo, it must be unconstitutional” is well within my mother’s limited capacity for jurisprudence. My mom, moreover, is as good and decent a person as the President could find.

Mothers, after all, are experts at weighing questions of decency. Just like the modern Supreme Court, mothers teach us what’s right and wrong and how to approach life’s most difficult choices. I can just see my mom glaring down at the counsel for the poor misguided people of Missouri and telling them what their evolved standards ought to be in her best “your date is wearing what to prom?” voice.

My mom could easily have applied Justice Kennedy’s “evolving standards of decency” test. To help him find America’s moral “consensus,” Justice Kennedy counted the number of states applying the death penalty to young killers. This test is simple to apply, because it doesn’t require the judge to deal with tiresome old ideas like federalism and self-determination. It’s reliable too. Kennedy was able to locate America’s moral “consensus” with such accuracy that four of his fellow justices agreed with him. What’s more, my mom is a piano teacher, so she can probably count even better than Justice Kennedy. And, if you’ve ever argued with her, you’ll know that the “moral consensus” is always on her side.

Justice Kennedy also relied on the views of the “international community” for help in locating America’s moral consensus. This approach might have been laughed out of court in less enlightened times, but, now that judges hang out at fancy international conferences they are increasingly able to help each other figure out what the law back home ought to be. My mom loves traveling and meeting new people, and we already have lots of weird foreign relatives who are more than free with their advice. As long as no one forces her to worry about concepts like sovereignty and federalism, I’m sure she would particularly enjoy this part of being a Justice.

My mom is a lady who says what she thinks. Her decisions wouldn’t be replete with superfluous verbiage about how “the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus.” Had my mom written for the Court in Roper, she would have come up with something concise: “I don’t like the death penalty for teenagers. It’s cruel. It’s unconstitutional. Affirmed” – and that would have been that.

Assuming she received a nomination, I’m certain my mom would sail past the Senate. It would be hard to filibuster the first Hispanic woman appointed to the High Court, especially when she has no record of legal scholarship over which to get borked.

Still, there are some snags. Namely, that I’m not sure my mom really wants to be a Supreme Court Justice.

She refuses to wear one of those ridiculous bib things. She also fears that serving on the Supreme Court would be too stressful, and that not having been to law school might be a problem. I tell her not to worry: the Supreme Court isn’t really about legal analysis anymore. Picking a moral consensus can’t possibly be any harder than teaching whiny prep-school kids to play Mozart’s Turkish Rondo. I also try appealing to my mother’s sense of responsibility. “Please, Mom,” I beg, “who better than you to tell those hickish square-staters what their evolved morality ought to be?” She doesn’t listen to this argument either, and seems content to let the United States devolve into constitutional crisis. Last time we spoke, she said something crazy about how the age at which Missourians apply the death penalty wasn’t her business.

Carlos Ramos-Mrosovsky is a 1L.

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