Judicial Activism (Page 2)

This is an interesting point.  In Roper v. Simmons, 543 U.S. 551 (2005) the U.S. Supreme court entered a per se prohibition against executing juveniles.  The majority opinion, authored by Justice Kennedy, relied heavily upon the "national consensus" standard.  There were two dissenting opinions one authored by justice O'Connor and one authored by Justice Scalia in which Thomas joined.  To see Thomas' view on the issue you would have to start by reading Scalia's dissent in the Roper opinion.  Basically, Scalia (and of course Thomas) find fault in the 'national consensus" argument as a standard.  Interestingly, in both the Scalia dissent and the O'Connor dissent in Roper both justices accuse the majority of not actually demonstrating a "national consensus", and Justice O'Connor specifically accusses the majority of basing their opinion, not on Constitutional law but rather on "independent moral judgments".

I believe, but I may be wrong, that Justice Thomas objection to the decisions in Roper and the decision yesterday in Graham is based upon his objection to the Supreme Court deciding 8th Amendment cases on the courts "independent moral judgment"; that is, he accusses the Court of Judicial Activism, and asserts that the Court is no better suited than State Legislatures, judges or juries to engage in "moral judgments".

(Roper is interesting because Kennedy finds a national consensus against the execution of juveniles by demonstrating that 47% of the states do not allow for the imposition of the death penalty, this amount of states he argues demonstrates a national consensus.  yet in the Graham case, with a super majority of jurisdictions allowing for life imprisonment of non-homicide juveniles he does not find a national consensus.  INteresting?  That's why I accuse Justice Kennedy of judicial activism.)