Are White Male 17-Year Olds Privileged to Act Illegally?

bad behavior

There are two vies on this topic: (1) the contemporary Republican view and (2) the opinion of the late Justice Antonon Scalia.

The White Male Teenager Privilege Defense

Writing in the New Yorker, someone named Jio Tolentino reminds us that some Kavanaugh defenders—including Kavanaugh himself—say the accuser is just lying. Others conjur up a Kavanaugh doppelgänger.

“But,” she writes,

a startling number of conservative figures have reacted as if they believe Ford, and have thus ended up in the peculiar position of defending the right of a Supreme Court Justice to have previously attempted to commit rape … These defenders think that the seventeen-year-old Kavanaugh could easily, as Ford alleges, have gotten wasted at a party, pushed a younger girl into a bedroom, pinned her on a bed, and tried to pull off her clothes while covering her mouth to keep her from screaming. They think this, they say, because they know that plenty of men and boys do things like this. On these points, they are in perfect agreement with the women who have defined the #MeToo movement. … We now mostly accept that lots of men have committed sexual assault, but one part of the country is saying, “Yes, this is precisely the problem,” and the other part is saying, “Yes, that is why it would obviously be a non-issue to have one of these men on the Supreme Court.”

The people who appear willing to believe Ford include Rod Dreher, the American Conservative writer, who tweeted, “I do not understand why the loutish drunken behavior of a 17 year old high school boy has anything to tell us about the character of a 53 year old judge.” The former congressman Joe Walsh tweeted, “If stupid, bad, or drunken behavior as a minor back in high school were the standard, every male politician in Washington, DC would fail.” An anonymous lawyer close to the White House told Politico, “If somebody can be brought down by accusations like this, then you, me, every man certainly should be worried.” Bari Weiss, the Times opinion columnist, said, on MSNBC, that she believed Ford, and then asked, “What about the deeper, moral, cultural, like, the ethical question here? Let’s say he did this exactly as she said. Should the fact that a seventeen-year-old presumably very drunk kid did this—should this be disqualifying?” On Fox News, Ari Fleischer said, “How much in society should any of us be held liable today when we lived a good life, an upstanding life by all accounts, and then something that maybe is an arguable issue took place in high school? Should that deny us chances later in life?” …

Kavanaugh’s defenders are putting plainly a previously euphemized message: white and wealthy teen-age boys have the right to engage in criminal sexual cruelty as long as they later get a good job, start a family, and “settle down.” …

The variation on this theme that may have bothered me the most came from Carrie Severino, the policy director for the conservative Judicial Crisis Network. On CNN, Severino said that Ford’s version of events could be describing anything from “boorishness to rough horseplay.” (In other words, it wasn’t attempted rape; it was a word that people use to cover up attempted rape.)

The No Teenage Privilege Defense Position

I am indebted to my friend Clarence, a fine constitutional scholar, for calling my attention to the views of Antonin Scalia on the question of whether teenage immaturity should prevent execution for capital crimes.

In Roper v. Simmons, a 2005 Supreme Court case, the Court decided, five to four, that the Constitution prohibits execution from crimes committed by persons under the age of 18.

Justice Scalia protested this judicial travesty in the strongest possible terms. Antonin Scalia’s dissenting opinion began with a screed against the majority’s employment of “evolving standards of decency” as a tool of constitutional interpretation. He went on to cite with approval psychological studies demonstrating that “[B]y middle adolescence (age 14–15) young people develop abilities similar to adults in reasoning about moral dilemmas, understanding social rules and laws, [and] reasoning about interpersonal relationships and interpersonal problems.”