Justice Stevens agreed with the majority opinion, but felt compelled to note that because “our understanding of the Constitution does change from time to time,” the Court could rightly examine the change in standards to interpret the Eighth Amendment. Yet Justices O’Connor and Scalia felt that there were obvious problems with the Court’s blanket ruling. They were especially concerned that the Court felt a “national consensus” against the juvenile death penalty existed. According to Justice Kennedy, 30 states now prohibit the juvenile death penalty – 12 that have eliminated capital punishment altogether and 18 that “exclude juveniles from its reach.” Yet Justice Scalia blasts this argument, noting that none of the Court’s previous cases that dealt with “alleged constitutional limitation upon the death penalty has counted states . . . that have eliminated the death penalty entirely.” Scalia rightly points out that this form of counting is like “including old-order Amishmen in a consumer-preference poll on the electric car.” Naturally they will be opposed to the idea, but this doesn’t shed new insight on the problem. Justice O’Connor adds that the “halting pace of change” in this situation is far different from the “extraordinary wave of legislative action” that preceded the court’s ruling in Atkins. This gives the dissenters “reason to pause,” because the national sentiment does not seem as concrete as Justice Kennedy asserts.

The dissenting opinions also focused on the Court’s reasoning that juveniles are “categorically less culpable than the average criminal.” Both Justices disagree with this reasoning, and Justice O’Connor points out that though a 17 year old murderer is normally less responsible than an adult, does not mean he could be “sufficiently culpable to merit the death penalty.” O’Connor points out that Simmons bragged he could “get away with [murder]” because of his age, a sign that he was not deterred by the idea of capital punishment. The fact that every detail was planned in advance explains how Simmons possesses “a consciousness materially more depraved than that of the average murderer.” Justice Scalia cites an amicus brief by the American Psychological Association, which argued that adolescents possessed effective skills in “reasoning about moral dilemmas” and “understanding social rules and laws,” and could make decisions like having an abortion without parental approval. Surely, if juveniles are mature enough to decide on an abortion, they can be mature enough to commit murder. Furthermore, Scalia discusses the amici briefs from several states that describe “additional examples of murders committed by individuals under 18 that involve truly monstrous acts.” While juvenile executions are rare, Justices O’Connor and Scalia believe that it was a mistake to ban them completely. In their mind, not only are some adolescents capable of heinous acts, they should be punished accordingly.

The dissenters’ final gripe against the Court lies in the use of international law to help base its opinion. Justice Kennedy