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The Supreme Court appeared deeply divided Wednesday on the constitutionality of executing juveniles — and on whether international norms should be a factor in making that decision. As is often the case, Justices Anthony Kennedy and Sandra Day O’Connor may hold the key to the outcome, and neither one sent clear signals to the crowded courtroom about their views. O’Connor was unusually taciturn, asking only one question, while Kennedy’s questions indicated that he is troubled by points made by both sides in the case, Roper v. Simmons. At one point, Kennedy said he was “very concerned” that if the Court strikes down the death penalty for juveniles in a highly publicized ruling, gangs will recruit members under 18 to be the “hit men,” knowing they will be immunized from execution. On the other hand, Kennedy also said earlier in the arguments that “world opinion is against us” on the issue. Fifteen years ago, the high court said that executing those who were 16 or 17 when they committed their crimes did not violate the Eighth Amendment bar against “cruel and unusual” punishment. But last year, the Missouri Supreme Court ignored the precedent and set aside the death sentence of Christopher Simmons, who was 17 when he murdered Shirley Crook. The Missouri court cited the growing national and international consensus against the juvenile death penalty, as well as the Supreme Court’s own 2002 decision in Atkins v. Virginia, which struck down laws allowing the execution of mentally retarded defendants. Missouri appealed to the Supreme Court, and the justices agreed to hear the case. This triggered an outpouring of briefs, mainly from opponents of the practice, including former U.S. diplomats, foreign diplomats, and human rights groups on the international issue, as well as scientific groups that told the Court of new research showing that adolescent brains are not fully developed. While the outcome of the case is uncertain, the hour-long argument was remarkable for giving a full airing to the hot debate among the justices and within academia over the relevance of international law to the Court’s jurisprudence. When Kennedy offered his comment about world opinion being against the juvenile death penalty, Missouri State Solicitor James Layton quickly replied that the Court’s decision “should not be based on what happens in the rest of the world.” Justice Antonin Scalia, who has said in speeches that he agrees with the position Layton took, chimed in that the European Union’s view on the issue was the result of a court ruling, not popular or legislative determinations. Kennedy acknowledged the point, but asked Layton again, almost incredulously, whether world opinion “has no bearing.” Again, Layton said no, prompting Justice Stephen Breyer to muse about whether founding fathers like James Madison or Thomas Jefferson would agree. “They did think Blackstone was relevant,” Breyer said, referring to the 18th century British legal commentator Sir William Blackstone. “Lincoln used to study Blackstone,” Breyer added. Kennedy spoke again, but Scalia put an end to the discussion with a sarcastic query to Layton, “What did John Adams think of the French?” Layton, who said he had recently read a biography of the second president, replied, “He didn’t think highly of them.” The debate broke out again when former Solicitor General Seth Waxman argued on behalf of Simmons that the trend away from executing juveniles is “very robust.” Waxman, a partner at Wilmer Cutler Pickering Hale and Dorr, asserted that the handful of states that still allow the execution of juveniles are “not only alone in this country, they are alone in the world.” Somalia, he said, is the only country that still allows it, and “it has no organized government.” Scalia jumped in again, noting that most of the world does not allow for trials by jury. “Should we yield to the rest of the world” on that practice as well? No, said Waxman, asserting that international norms, while they should be considered, are not binding. “It’s not game, set, and match. It’s relevant,” Waxman said. But Kennedy did not seem convinced, raising other issues — including the scientific evidence about the maturity of adolescents. Picking up on a point made by Layton in a brief, Kennedy noted that, in the current case, the American Psychological Association argues that adolescent decision-making is immature, while in the context of past cases on abortion rights, the association has argued that juveniles are mature enough to decide on their own whether to have abortions. Waxman replied that the murder and abortion contexts are different and said the psychological evidence is enough to prove that adolescents who murder should not be “among the worst of the worst” offenders who deserve execution. Kennedy also cited the “chilling reading” contained in the brief written on the side of Missouri by Alabama Solicitor General Kevin Newsom, a former law clerk to Justice David Souter. The brief told the story of several cold-blooded murders committed by 16- or 17-year-olds. Justice John Paul Stevens interjected that in the cases mentioned in Alabama’s brief, the prospect that they could be executed “was not a deterrent.” When the justices were not talking about international issues or scientific studies, they were often trying to measure the consensus among the states on juvenile executions. That was a key factor in Atkins, the case relating to the mentally retarded, as well as in Stanford v. Kentucky, the 1989 case that set the minimum age for execution at 16. Justice Ruth Bader Ginsburg said the measure of adulthood in the United States is “pervasively 18,” the point at which people can vote, serve on juries, and go into the military. Layton countered that 17-year-olds can enlist in the military with parental permission, and he said that, in Missouri, 15-year-olds can drive. But for O’Connor, in her only comment, the issue was how many states have turned away from executing juveniles. She solicited Layton’s response to her view that “[i]t’s about the same consensus as in Atkins.” O’Connor was in the majority in Atkins. Layton disagreed with O’Connor, saying the “inexorable trend” among the states that moved away from executing the retarded does not exist as it relates to juveniles. But later, Waxman countered that the consensus among states on both issues was exactly the same, with 31 states forbidding the execution of juveniles and 31 barring the execution of the mentally retarded. But later, after another exchange with a skeptical Kennedy, Waxman said with resignation, “I have not convinced you.”

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