Kennedy v. Louisiana

Once again, we see how much was lost by the failure to confirm Robert Bork. Justice Kennedy, siding again with the liberal four, has penned the decision in Kennedy v. Louisiana which now deems unconstitutional the imposition of the death penalty for raping a child. They have done this by the simple expedient of reading the public mood, by methods which are unscientific at best, and determining that the United States is now a country in which imposing the death penalty for this particular case would violate "currently prevail[ing] norms¹."

The Eighth Amendment...provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Amendment proscribes “all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive.” Atkins, 536 U. S., at 311, n. 7.
...
Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that “currently prevail.” Atkins, supra, at 311. The Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion).
...
Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule.

The decision walks through the cultural history of "evolving standards of decency," outlining the path by which the majority has determined that application of the death penalty in this case would be "cruel and unusual." A disturbing number of the milestones on that path happen not to be societal changes where elected bodies do away with potential death penalty causes, but judicial changes where non-elected judges determine that the laws enacted by the elected representatives of the people don't accurately reflect the "evolving standards of decency that mark the progress of a maturing society²."

Frankly, the majority gives the game away in the penultimate paragraph of the decision. This decision is based on their personal animus toward the death penalty, not any constitutional requirement. And they admit it.

In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.

Indeed, it is not at all difficult to imagine the current court, with one of the conservative justices replaced by another liberal, invalidating all death penalty statutes. Again.



¹ - I rather suspect that, if given the facts and allowed to vote, an actual majority would think that lethal injection in this case would be, not "cruel and unusual" but actually too good for the perpetrator. As Justice Kennedy and his cohorts apparently believe that their role is to act as a national moral weathervane (albeit one with the authority to do whatever the hell they feel like doing), I wonder if they'd be willing to put it to the test...

² - For example, "[i]n 1972, Furman invalidated most of the state statutes authorizing the death penalty for the crime of rape; and in Furman’s aftermath only six States reenacted their capital rape provisions...All six statutes were later invalidated under state or federal law...In 1981, however, the Supreme Court of Florida held the death penalty for child sexual assault to be unconstitutional."


UPDATE: More here...

Well, as long as five Justices count the votes, what are you going to do about it? The majority expressly rejects the idea that the messy business of finding consensuses should be left to the representatives of the people whose "consensus" is being announced, and instead announces a default presumption against the death penalty wherever a clear national consensus does not exist in its favor