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Bench Memos

NRO’s home for judicial news and analysis.

Earth to Washington Post



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The editors of the Washington Post must be the last Supreme Court observers in America who actually believe the smoke the justices blow about a “national consensus” shedding light on the progress of our “evolving standards of decency” and thus on the current “meaning” of the Eighth Amendment to the Constitution.  Discussing yesterday’s denial of rehearing in Kennedy v. Louisiana, the Post finds fault with the Court’s denial because “Supreme Court precedent dictates that justices take into account” a fact like the Congress’s passage two years ago of a death penalty for military personnel who rape children.  But precedents that were themselves conjured out of thin air are no constraint on the justices.  Nor, in a sense, should they be.  It might be best–most educational, anyway–if they are treated with the contempt they deserve.

The Post goes on to say that Justice Kennedy’s arguments for disregarding the military death penalty as having no effect on the June ruling “are unconvincing and leave–deservedly or not–the impression that a majority of the court refused to allow new facts to alter their positions.”  Wow.  Don’t the editors get it?  The majority of the Court was never interested in any facts in the first place.  Yesterday’s coda to the case only confirmed this truth.  The real value of the amended Kennedy ruling is its exposure as a fraud of the whole body of Eighth Amendment jurisprudence.

With a sad shake of its editorial head, the Post opines that “the court may have damaged, even if slightly, its own reputation.”  Would that it were so.  The really sad thing is how steadily high the Court’s reputation generally is among the public at large.  But most people pay little attention to the Court’s actions, and are ill-equipped to criticize it if they do.  Among those of us who make Court-watching our vocation, yesterday’s denial of rehearing could not have made our estimation of the Court sink lower.  It was only the final, delayed but predictable scene of a minor farce.



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