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By Root 8439 0

surrounding the death penalty was changing. In his early years on the Court, Rehnquist had crusaded to speed up executions in the United States, and his opinions seethed with frustration at the procedural roadblocks his liberal adversaries—chiefly Brennan and Marshall—had managed to create. In this respect, Bill Clinton was in ideological accord with the chief justice, and in the aftermath of the Oklahoma City bombing, the president signed the Antiterrorism and Effective Death Penalty Act of 1996. The bizarrely named statute was supposed to limit appeals by condemned prisoners, but its impact was muted by larger trends. Crime dropped dramatically during the Clinton years; at the same time, the number of people freed from prisons, often from death row, because of faulty convictions rose. (Many of these exonerations took place because of the use of new DNA technology.) By the time Bush became president, public support for the death penalty, death sentences by juries, and the number of executions were all falling. Executions had peaked in 1999 at ninety-eight and has more or less trended down ever since.

Even without outright opponents of the death penalty like Brennan, Marshall, and (eventually) Blackmun, the Court in the Bush years imposed new limits on executions. In 2002, the Court said judges alone, without the concurrence of jurors, could not impose death sentences; also that year, the justices ruled that the execution of the mentally retarded violated the Eighth Amendment’s ban on cruel and unusual punishment. These rulings all came over the vigorous dissents of Rehnquist, Scalia, and Thomas—sometimes joined by Kennedy or O’Connor, who was an especially strong supporter of the death penalty—but the shift on the Court as a whole was unmistakable.

Even in light of these developments, Kennedy’s performance at the oral argument of Roper v. Simmons was stunning.

“Let’s focus on the word ‘unusual.’ Forget ‘cruel’ for the moment,” Kennedy said to James R. Layton, the local prosecutor in Jefferson City, who was defending the Missouri law. “We’ve seen very substantial demonstration that world opinion is against this, at least as interpreted by the leaders of the European Union. Does that have a bearing on what’s ‘unusual’? Suppose it were shown that the United States were one of the very, very few countries that executed juveniles, and that’s true. Does that have a bearing on whether or not it’s ‘unusual’?”

No, said Layton. “The decision as to the Eighth Amendment should not be based on what happens in the rest of the world. It needs to be based on the mores of American society.”

Playing his familiar populist card, Scalia jumped in, asking, “Have the countries of the European Union abolished the death penalty by popular vote?” Plainly baffled by this detour into foreign lands, Layton said he didn’t know. But Scalia did know—and pointed out that European elites had abolished the death penalty in their countries even though “public opinion polls in a number of the countries support the death penalty.”

Kennedy, who saw where Scalia was going, said, “I acknowledged that in my question. I recognize it is the leadership in many of these countries that objects to it. But let us assume that it’s an accepted practice in most countries of the world not to execute a juvenile for moral reasons. That has no bearing on whether or not what we’re doing is ‘unusual’?”

None, said Layton.

Breyer came to Kennedy’s aid, pointing out that James Madison and his colleagues drew on foreign sources in writing the Constitution. Surely, said Breyer, there was no reason to think the framers “thought it was totally irrelevant what happened elsewhere in the world to the word ‘unusual.’ ” Abraham Lincoln studied William Blackstone, the great English legal scholar, and “I think he thought that the Founding Fathers studied Blackstone, and all that happened in England was relevant; is there some special reason why what happens abroad would not be relevant here?” (As usual at oral argument, the lawyer was largely a spectator as the justices talked to one