Sunday, August 2, 2009

Roper v. Simmons and A.C. v. Manitoba (Director of Child and Family Services)

The decision of SCOTUS in Roper v. Simmons ( provides an interesting contrast with the decision of our Supreme Court in A.C. v. Manitoba (Director of Child and Family Services) In the latter case our court reviewed whether kids under 16 could decide to reject life saving medical procedures--there a blood transfusion--and held they cannot, as I read the majority decision, under any circumstances. The court struggled mightily with whether 16 was arbitrary and Justice Abella tried to say her reasoning compelled the conclusion it was not. (In actuality, as I read the decision, it was arbitrary. The 14 year old applicant's argument was that arbitrariness is answered by a case by case determination rather than by drawing rigid lines. And I noted in a post below, Justice Binnie complained that never once had Justice Abella ever met squarely the applicant's argument.)

SCOTUS in Roper wrestled with whether "...the execution of minors violates the prohibition of 'cruel and unusual punishment' found in the Eighth Amendment and applied to the states through the incorporation doctrine of the 14th Amendment." In holding 5 to 4 that it does so violate the Eighth Amendment the court struggled with the question of whether minors--those under 18--had sufficient culpability to warrant the death penalty. The argument was that adolescents by definition are maturing and developing and it is impossible to distinguish, for the purposes of visiting on them the most awesome of penalties meant only "for the worst of the worst", between enduring characterological traits and transient developmental traits.

The court's majority resolved this issue by resort to its *ability* to divine a national consensus by analyzing states' laws and practices. The consideration given to the tension between what is characterological and what is developmental speaks strongly to the result reached in A.C. SCOTUS's acceptance of the arbitrariness of 18 as a clear bright line was animated by the same impulses that drove the majority in A.C. to reject kids under 16 refusing life saving treatment.

SCOTUS swept any question of the arbitrariness of its bright line of 18 into its finding of a national consensus--(state's counsel argued as had A.C. for an individuated case by case determination for kids between 15 and 17); in A.C., as noted, Justice Abella pretended 16 was not arbitrary when it fact it was.

I repeat my wish posted below that someone provide an analysis of the general constitutionality of states drawing bright lines that in the nature of these things—“you have to draw a line somewhere” as the saying goes--have built in and necessary arbitrariness but can survive constitutional scrutiny.

A.C. v. Manitoba (Director of Child and Family Services) especially calls out for it.

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