Intrigued by the Roper bashing

Jeffrey Rosen has this essay in the The New Republic on the Supreme Court’s Roper decision with this provocative openning:

The morning after the Supreme Court struck down the juvenile death penalty as a form of cruel and unusual punishment in Roper v. Simmons, the reaction in the Supreme Court press room was unusually scathing.  A liberal journalist lamented that, ever since Justice Anthony Kennedy, who wrote the 5-4 opinion for the Court, styled himself as a judicial statesman, he has become insufferable, out of control, and “deserves to be slapped.” A conservative journalist chimed in that the decision was embarrassing, because the justices had imposed their own moral preferences on the country without attempting to convince those who disagreed.

The consensus among our ideologically diverse little band was revealing.  Roper v. Simmons is indeed embarrassing….

Though the bulk of Rosen’s piece is about the Supreme Court’s consideration of international opinion in its decisions, it confirms (and contributes to) my general impression that Roper has been among the most critically assailed Supreme Court opinions in recent memory. 

Rather than join the critical discussion of Roper, I am interested in a critical discussion of why the discussion of Roper has been so critical.  I am drawn to this question principally because Roper, at least on its merits, is arguably not all that much different than the Supreme Court’s 2002 decision in Atkins which found a constitutional prohibition on the execution of persons who are mentally retarded.  I do not recall Atkins being treated harshly by commentators.

There are tangible doctrinal differences between Roper and Atkins which arguably could explain their different receptions.  But I am inclined to think other factors besides purely legal considerations explain the distinct reactions to Roper and Atkins.  In particular, as the Rosen piece suggests, I sense that bashing Justice Kennedy (the author of Roper) and bashing the considerations of foreign authorities is far more in vogue these days than was bashing Justice Stevens (the author of Atkins) and bashing the considerations of foreign authorities in 2002.