Bench Memos

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Tribal Thinking


Another surprising development in connection with the state of Louisiana’s request that the Supreme Court reconsider its 5-4 ruling in Kennedy v. Louisiana (holding that imposition of the death penalty for the crime of raping a child violates the Eighth Amendment):  In today’s Wall Street Journal, Harvard law professor Laurence Tribe supports Louisiana’s request.  Noting that the Court’s discernment of a supposed societal consensus against the death penalty for rape of a child failed to take account of a 2006 federal law, Tribe soundly observes that the Court’s “credibility depends on both candor and correctness when it comes to the factual predicates of its rulings.”  In an unusual departure from his record of boisterous support for liberal judicial activism, Tribe also criticizes the Court for “imposing a dubious limit on the ability of a representative government to enforce its own, entirely plausible, sense of which crimes deserve the most severe punishment.”


So far, so good.  But at the core of Tribe’s piece is a zany argument.  According to Tribe, the Court’s invalidation of the death penalty for rapists of children “puts [the Eighth Amendment] on a collision course with the 14th Amendment’s equal protection clause.”  Indeed, he appears to argue that the collision has already happened:


If a legislature were to exempt the killers of gay men or lesbians from capital punishment, even dedicated death penalty opponents should cry foul in the Constitution’s name. So too, should they cry foul when the judiciary holds the torturers or violent rapists of young children to be constitutionally exempt from the death penalty imposed by a legislature judicially permitted to apply that penalty to cop killers and murderers for hire.  (Emphasis added.)


This apparent Equal Protection argument makes no sense.  For all its faults, the Court’s ruling in Kennedy v. Louisiana treats child victims of violent rape exactly the same as adult victims of violent rape:  in neither case may their brutalizers be subjected to the death penalty.  The contention that judges should read the Equal Protection clause as requiring that those who violently rape children be subject to the death penalty if “cop killers and murderers for hire” face it is a plea for extravagant judicial activism (admittedly, in a conservative direction, but, notably, not a proposition that has any currency among legal conservatives). 


Under a proper reading of the Constitution, states have broad leeway whether or not to impose the death penalty for child rape.  No one who opposes the Court’s wrong ruling in Kennedy v. Louisiana need or should embrace Tribe’s argument that states violate the Equal Protection Clause (or at least would be “on a collision course with” it) if they decide to impose the death penalty for “cop killers and murderers for hire” but not for rapists of children.


It’s worth noting that Barack Obama is a protégé of Tribe’s and that Tribe is top on Obama’s list (see question 11 here) of legal advisers.  Indeed, as this article reports, Tribe has called Obama the “best student I ever had” and the “most exciting research assistant”—it’s clear that Tribe finds wild ideas exciting—and he has confidently stated that Obama would appoint justices “who share his [Obama’s] view that the Constitution is a living document that has to be interpreted in light of evolving values of decency.”  All the more reason to fear the sort of Supreme Court appointments that a President Obama would make.

Tags: Whelan


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