The Dissents
Justice Scalia wrote a dissent joined by Chief Justice Rehnquist and Justice Thomas. Justice O’Connor also wrote a dissenting opinion. The dissents put into question whether a “national consensus” had indeed formed among the state laws, citing the fact that at the time of the ruling only 18 of 38 death penalty states (47%) prohibited the execution of juveniles (the other 12 states executed neither juveniles nor adults).
However, the primary objection of the Court's two originalists, Justices Scalia and Thomas, was whether such a consensus was relevant. Justice Scalia argued that the appropriate question was not whether there was presently a consensus against the execution of juveniles, but rather whether the execution of such defendants was considered cruel and unusual at the point at which the Bill of Rights was ratified.
In addition, Justice Scalia also objected in general to the Court's willingness to take guidance from foreign law in interpreting the Constitution; his dissent questioned not only the relevance of foreign law but also claimed the Court would "invoke alien law when it agrees with one's own thinking, and ignore it otherwise," noting that in the case of abortion U.S. laws are less restrictive than the international norm.
Scalia also attacked the majority opinion as being fundamentally antidemocratic. His dissent cited a passage from the Federalist Papers in arguing that the role of the judiciary in the constitutional scheme is to interpret the law as formulated in democratically selected legislatures. He argued that the Court exists to rule on what the law says, not what it should say, and that it is for the legislature, acting in the manner prescribed in Article V of the Constitution to offer amendments to the Constitution in light of the evolving standard of decency, not for the Court to arbitrarily make de facto amendments. He challenged the right of unelected lawyers to discern moral values and to impose them on the people in the name of flexible readings of the constitutional text.
Read more about this topic: Roper V. Simmons