I have just finished working my way through the opinions in Roper v. Simmons. As someone who greatly values stare decisis, I was disappointed by Justice Kennedy's majority opinion. There just isn't much there to justify overruling a 16-year-old precedent and striking down 18 state laws. I'm not sure about the juvenile death penalty as a matter of policy, but I found Justice Scalia's powerful dissent pretty tough to refute as a matter of constitutional law.

  One interesting part of Roper is the incentives it creates (together with Atkins v. Virginia) for those seeking judicial abolition of the death penalty. Roper and Atkins tell capital defense litigators to delay their cases for as many years as possible. Drag out the appeals for a long, long time. During that period, have activists try to encourage legislators in a few select states to enact new legislative restrictions on the death penalty. It doesn't matter if those restrictions have any actual effect on how cases are charged; bans in states that do not actually bring any death penalty cases are fine, as the real audience is the Supreme Court. Years down the road, you can then use the new legislative restrictions in a few states as "objective indicia of consensus" that the practice of using the death penalty in such cases is impermissible. In effect, the changing practice in a handful of states can be bootstrapped by the courts into a constitutional ban that applies to all states.

  Notably, the bootstrapping can be prospective: evidence of changing attitudes in years following the crime and conviction can be used to trump then-governing law. This seems to be what happened in Roper. In 1989, the Court held that it was permissible to execute persons for murders committed at the age of 16 and 17. In 1993, Christopher Simmons committeed his heinous murder, and in 1994, Simmons was convicted and sentenced to death. Then, in the 11 years after Simmons was convicted and before the Supreme Court decided its case, 4 states decided end potential juvenile capital liability. [At least I think the states acted after 1994; to be honest, it's hard to tell from the Streib chart that the Court relies on. If anyone knows the exact dates, please e-mail me.] The action of the 4 states then became the basis for an alleged "consensus" in the direction of ending the juvenile death penalty. Had Roper been scheduled for execution soon after his conviction, executing him presumably would have been constitutional. Executing him apparently became unconstitutional only years later, after Atkins loosened up the Eighth Amendment a bit and a few states had banned the juvenile death penalty.

  UPDATE: Reader Jack Sullivan points out: "It seems pretty obvious that the defense lawyers already have plenty of incentive for delay. Delay keeps their clients alive." Indeed! The novel part here isn't the incentive for delay but the incentive for pushing legislative reforms during that delay.