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"Evolving Standards of Decency"

From the April 4, 2005 issue: "Evolving Standards of decency" saved Christopher Simmons's life; they weren't enough to save Terri Schiavo.

Apr 4, 2005, Vol. 10, No. 27 • By WILLIAM KRISTOL
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THANK GOD FOR OUR JUDGES. (Oops! Sorry. No offense, your honors. I didn't mean to write "God." Or at least I didn't mean anything specific or exclusionary or sectarian or unconstitutional by writing "God." It's just an expression I occasionally use. It does go way back in U.S. history. I hope it's okay.)

Anyway. Thank God for our robed masters. If it weren't for them, Christopher Simmons might soon be executed. In September 1993, seven months shy of his 18th birthday, Simmons decided it would be interesting to kill someone. He told his buddies they could get away with it because they were still minors. He broke into the house of Shirley Crook in Jefferson County, Missouri, bound her hands and feet, drove her to a bridge, covered her face with tape, and threw her into the Meramec River, where she drowned. He confessed to the crime, and was sentenced to death according to the laws of Missouri.

Last month the Supreme Court saved Simmons's life. The citizens, legislators, and governor of Missouri (and those of 19 other states) had, it turned out, fallen grievously and unconstitutionally behind "the evolving standards of decency that mark a maturing society." Five justices decided that the Constitution prevented anyone under the age of 18 from being sentenced to death. So Christopher Simmons will live.

It appears, at this writing, that Terri Schiavo will not. In a series of decisions in Florida state courts, Circuit Judge George Greer and his colleagues have chosen to credit the claim of Michael Schiavo that his wife long ago expressed a well-considered wish to be killed if she found herself in a disabled state. Of course, there is no reason to believe she ever seriously considered she might find herself in such a state. They have chosen to deny efforts by Terri Schiavo's mother and father to assume responsibility for their daughter's care. They have chosen to strike down legislation passed by the Florida legislature, and signed by the governor, to permit the governor to allow water and nutrition to be given to patients who leave no written directive, and to allow some recourse for family members who wish to challenge the withholding of nutrition and hydration.

Last week, federal judges chose to dismiss, out of hand, extraordinary legislation passed by the U.S. Congress and signed by the president, which asked the federal courts to take a fresh look at the case. The federal judges chose not to explain why "evolving standards of decency" might not allow Terri Schiavo to be kept alive until the case was argued in federal court. The judges assumed nothing new or meaningful would be learned from such an argument, or that the federal legislation might be found unconstitutional. The federal judges chose not to bother to explain why either might be the case.

So our judges deserve some criticism. But we should not be too harsh. For example, it would be wrong to suggest, as some conservatives have, that our judicial elite is systematically biased against "life." After all, they have saved the life of Christopher Simmons. It would be wrong to argue, as some critics have, that our judges systematically give too much weight to the husband's wishes in situations like Terri Schiavo's. After all, our judges have for three decades given husbands (or fathers) no standing at all to participate in the decision whether to kill their unborn children. It would be wrong to claim that our judges don't take seriously legislation passed by the elected representatives of the people. After all, our judges are committed to upholding the "rule of law"--though not, perhaps, the rule of actual laws passed by actual lawmakers. And it would be wrong to accuse our judges of being heartless. After all, Judges Carnes and Hull of the 11th U.S. Circuit told us, "We all have our own family, our own loved ones, and our own children."

So do we all. They deserve a judiciary that is respectful of democratic self-government and committed to a genuine constitutionalism. The Bush administration should nominate such judges, and Congress should confirm them. And the president and Congress should lead a serious national debate on the distinction between judicial independence and judicial arrogance, and on the difference between judicial review and judicial supremacy. After all, we are a "maturing society," as the Supreme Court has told us. Perhaps it is time, in mature reaction to this latest installment of what Hugh Hewitt has called a "robed charade," to rise up against our robed masters, and choose to govern ourselves. Call it Terri's revolution.

--William Kristol