The Supremes today declared executing 16 and 17 year olds to be unconstitutional. I care much less about the decision than about how it was reached. Here's Justice Kennedy in the majority decision: "Our society views juveniles ... as categorically less culpable than the average criminal."

I thought the Constitution was about rights of individuals, not about which categories of people are more or less culpable. Indeed, if society's views on culpability are really what should determine their eligibility to receive the death penalty for heinous crimes, then isn't the legislative process the appropriate forum for determining punishments? It seems that 535 people elected by the people from various states/districts would be a better reflection of "society's views" than would 9 Supreme Court justices.

I also suspect that Kennedy and the rest of the Supremes performed no serious research to determine "society's views." For example, one could crank up the econometrics to assess whether 17 year old killers are less likely to be sentenced to death than are 18 year old killers. After all, if society really is less comfortable with executing juveniles then one would expect juvenile killers to be less likely to receive death sentences from juries.

Not surprisingly (see the last 3 paragraphs of the linked article), Scalia skewers the majority's reasoning.

UPDATE (3/1, 5 PM): One of my favorite expressions is that democracy is two wolves and a lamb voting on what's for dinner. Moreover, a decent share of my research is on public choice topics. Hence, I should have added some disclaimers (e.g., special interests, logrolling, agenda-setting) to my suggestion that a legislature of 535 might be more representative than 9 judges. Indeed some argue that the Supreme Court is more representative than Congress (hat tip to Trent McBride). Perhaps I should have phrased my suggestion as follows: For better or worse, legislatures are supposed to reflect the popular will whereas the Supreme Court is supposed to rule on constitutional principles.