Rarely has a denial of a writ of certiorari given such a glimpse of the passions that rend the Supreme Court as those handed down yesterday in two capital cases. That of Kevin Nigel Stanford involved the question of whether a person can be executed for a crime committed while a minor. In that of Chas. Foster the question was whether 27 years on death row amounts to cruel and unusual punishment. Both of these cases were to be grist for the campaign of the High Court’s liberal wing to delegitimize the death penalty. But the majority would have none of it.

Without comment, a five member majority turned down the appeal of Stanford, who, when a minor, abducted, sodomized, and killed a gas station attendant. Justice Stevens, however, issued a lengthy dissent. Reveling in the glory of his recent death penalty victory in the case of Atkins v. Virginia earlier this year, he again pulled out the legal figment that the high court should be bound by something called “the direction of change” and overrule the prosecutors, judges, and juries lower down. In Atkins, Justice Stevens argued for the majority that because 30 state legislatures outlawed executing the mentally retarded, all 50 states must bend to an evolution of moral standards. Though only 28 states have outlawed executing minors, Justice Stevens argued in his dissent yesterday that the same logic must apply in the current case.

This time, Justice Stevens’ logic did not prevail, though a denial of a petition for a writ of certiorari doesn’t follow a full hearing of a case. Why, exactly, is not clear on account of the lack of a majority opinion. Justices Scalia, Thomas, and Rehnquist stood apart from the majority in Atkins. However, those swing justices deciding Atkins based on their own moral judgments of the penalty may have been less than moved by Justice Stevens’ assertion that, “Neuroscientific evidence of the last few years has revealed that adolescent brains are not fully developed, which often leads to erratic behaviors and thought processes.”

The case of Foster gave a glimpse of yet another novel constitutional notion — that the Supreme Court of the Untied States should bow to foreign laws. This from Justice Breyer, of all people. He argued that Foster’s 27 years “in death row’s twilight” was cruel. He went on to write that “the Supreme court of Canada recently held that the potential for lengthy incarceration before execution is ‘a relevant consideration’ when determining whether extradition to the United States violates principles of ‘fundamental justice.'” This was too much for Justice Thomas. “While Congress, as a legislature, may wish to consider the actions of other nations on any issue it likes, this court’s Eighth Amendment jurisprudence should not impose foreigns moods, fads, or fashions on Americans.”

What we have just seen is a rebuttal of the strategy the left wing of the court has been pursuing since it has failed to gain support for the notion that the death penalty is a violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment. The failure no doubt has much to do with the fact that the Bill of Rights itself contemplates capital punishment. What the left wing of the court has been doing of late is attacking the death penalty on its periphery — using retarded persons and minors, for instance — in an effort to chip away at the whole. But the direction of change, it seems, has, for the moment at least, been thwarted.