“The Law Must Change”

There are a couple of cases before the Supreme Court in this session involving questions of excessive punishment. One case involves a defendant on death row in a case where a jury rendered a majority advisory verdict applying the death penalty on the defendant’s conviction of murder, with the judge having the final say. The argument here is that this

violates a 2002 precedent that defendants are entitled to have a jury, rather than a judge, determine a death sentence.

The other case, though, is the one that interests me. In this case, a 17-year-old, a juvenile under the definitions extant at the time, was convicted in 1963 of murdering a sheriff’s deputy and given a life without parole sentence. His appeal asks the Court to make retroactive its 2012 ruling that

juveniles cannot automatically be sentenced to life imprisonment without the possibility of parole.

The government agrees with the defendant in this case, which may or may not be an appropriate thing to do in such matters, depending on the facts of a particular case.

What’s of critical importance here, though, is the government’s argument in supporting the defendant. Deputy Solicitor General Michael Dreeben argued

The law must change to accommodate the compelling interests in having the characteristics of youth that mitigate culpability considered in the sentencing process[.]

That’s absolutely true. Laws passed by our elected representatives must change to accommodate society’s changing compelling interests. But the courts cannot do that. The courts’ role is strictly limited under our social compact to striking a law down if it violates our Constitution and to applying the law as it is written if the law is Constitutional. The task of making law, or of modifying existing law, is solely within the province of our legislature, our elected representatives, since making or modifying law is purely a political matter and not at all a judicial one.

The Supremes, if they’re to be true to their oaths of office, must reject the appeal. The Justices certainly can, in their published opinion(s) on the case, advise the Congress to make changes the Justices individually or collectively think appropriate, but they may not legislate from the bench.

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