Bench Memos

The Evolving George Will

I have remarked before on the strange turn George F. Will has taken toward endorsing judicial activism–and the way in which his constitutional views today constitute an unacknowledged contradiction of arguments he has made many times before (see, for example, this post from nearly a year ago).  Will’s two most recent columns (actually, nearly all his recent columns) underscore this mystifying evolution on his part.

In his April 18 column on Judge J. Harvie Wilkinson’s new book, he delivered himself of a couple of paragraphs that the George Will of ten or twenty years ago would have greeted with withering derision had someone else written them:

Granted, where politics operates — where collective decisions are made for the polity — majorities should generally have their way. But a vast portion of life should be exempt from control by majorities. And when the political branches do not respect a capacious zone of private sovereignty, courts should police the zone’s borders. Otherwise, individuals’ self-governance of themselves is sacrificed to self-government understood merely as a prerogative of majorities.

The Constitution is a companion of the Declaration of Independence and should be construed as an implementation of the Declaration’s premises, which include: Government exists not to confer rights but to “secure” preexisting rights; the fundamental rights concern the liberty of individuals, not the prerogatives of the collectivity — least of all when it acts to the detriment of individual liberty.

There is hardly a thought in these two paragraphs that could not be expressed by ideologues of either the left or the right–as the case may be–as they seek judicial interference with the right of the people to govern themselves.  But as an account of judicial authority these paragraphs are a null set.  A few lines later, Will argues that the words of the Constitution “are to be construed in the bright light cast by the Declaration.”  It is hard to imagine a less helpful guide to jurisprudence than that.  But when appealing to judges to enact an agenda that is a sure loser in democratic politics, it is a useful rhetorical device–more’s the pity.

In his latest column, Will endorses a notion that he has many times criticized, even ridiculed–namely, the view expressed in 1958’s Trop v. Dulles that “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  The subject at hand is whether it is “cruel and unusual punishment” for a state to sentence minors to life in prison without chance of parole.  According to Will, the Supreme Court, in an upcoming case, “must consider not only what is society’s sense of cruelty but also how that sense should be shaped by what some new technologies reveal about adolescent brain biology.”

But there is no compelling reason for the Supreme Court to regard either question as properly its business.  And this is something George Will knew, once upon a time.  In a column on May 16, 1985, Will wrote, regarding the notion of “evolving standards of decency”: “That such standards evolve is obvious.  What is far from obvious is that judges are better than elected representatives at discerning current standards of decency.” 

That column was about the use of the electric chair in executions, and Will concluded by remarking that the matter was a fit subject for “a public debate that should be conducted and resolved by those responsible for representing community standards of decency: elected representatives.”  On September 13, 1990, Will likewise asked, “how do judges measure such evolution [of standards of decency]?  Are not community standards expressed in the capital-punishment laws the court is asked to strike down?”

In his latest, Will notes that:

Before its June 26 recess, the Supreme Court will decide whether sentencing children to die in prison is cruel. It certainly is unusual: Although 2,300 current prisoners have been sentenced to life without parole for crimes committed as juveniles (age 17 or younger), just 79 prisoners in 18 states are serving sentences of life without parole for crimes committed when they were 13 or 14.

But in his column on July 3, 1988, Will noted, in connection with a case concerning the death penalty for juveniles:

[Justice] Stevens noted that very few executions in this century (no more than 20; none since 1948) have involved killers under 16.  But [Justice] Scalia noted that the statistic demonstrates only a longstanding consensus that such executions should be rare.  And if the relative rarity of an act is construed as conclusive evidence that the act is cruel and unusual, then the execution of women could forthwith be declared unconstitutional.

Twenty-four years later, that old column explodes the argument of his latest one.

When the Supreme Court struck down the use of the death penalty for minors just seven years ago, Will wrote a blistering criticism of the decision (in his column of March 6, 2005), calling Justice Kennedy’s opinion in the 5-4 case of Roper v. Simmons “a tossed salad of reasons why those five think the court had a duty to do what state legislatures have the rightful power and, arguably, the moral responsibility to do.”  That was Will’s view of capital punishment for murderers under 18, whereas today he argues that the Court should invalidate the lesser punishment of life in prison without parole.  He concluded in 2005 by calling the opinion in Roper “an intellectual train wreck, but useful as a timely warning about what happens when judicial offices are filled with injudicious people.”

Today, however, Will endorses the Roper decision without the slightest indication that he ever viewed it with such scorn.  Today he holds it up as an example of how “the Supreme Court has accommodated what science teaches” about the juvenile brain.

It is plausible that Will is right about the injustice of permanently incarcerating 14-year-old murderers.  It is something less than plausible that he is right about the constitutional authority of the Supreme Court to pronounce on the question.  And it is preposterous that he could have been right in 1985, 1988, 1990, and 2005–and also be right today.  But it is not too much to ask that a writer with such a track record acknowledge that his considered views have altered approximately 180 degrees, and give his readers arguments that rebut the ones he used to make.


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