Does Roberts question modern 8th Amendment jurisprudence?
Though the media is now focused on how Democrats are going to vote on the Roberts’ nomination, the Wall Street Journal this morning has this article (subscription required) noting Judge Roberts’ written responses to follow-up questions from last week’s Senate Judiciary Committee hearing. Interestingly, the article’s lead asserts that, through these written responses, Roberts “cast doubt on a 1958 Supreme Court precedent that underpins recent rulings finding the execution of juvenile offenders and the mentally retarded to be unconstitutional. “
Here is the full passage from the WSJ article covering this interesting and potentially consequential issue of Eighth Amendment jurisprudence:
It was in response to written questions from Mr. Kennedy and Sen. Sam Brownback (R., Kan.) that Judge Roberts commented on the standard the high court has used for nearly half a century to interpret the Eighth Amendment ban on “cruel and unusual punishments.”
In the 1958 Trop v. Dulles case, Chief Justice Earl Warren wrote that the amendment should be interpreted according to “the evolving standards of decency that mark the progress of a maturing society,” and later rulings have looked to both domestic and international mores to assess whether certain punishments are constitutional. In March, a 5-4 Supreme Court used that test to strike down state laws allowing the execution of juvenile offenders.
In his reply, Judge Roberts didn’t attack the “evolving standards” test, as Justice Antonin Scalia and other critics have. But he observed that applying “this principle has been a source of deep disagreement on the court that can in part be traced to the language of the Eighth Amendment.”