Bench Memos

NRO’s home for judicial news and analysis.

More on Kennedy v. Louisiana


As I noted earlier, when Kennedy declaims that “[e]volving standards of decency must embrace and express respect for the dignity of the person,” the only person whose dignity is the object of his concern is the rapist, not the victim and not other future victims.  That doesn’t mean, however, that the 8-year-old victim of the brutal rape, or the child victim of rape generally, plays no further role in Kennedy’s analysis.  On the contrary, Kennedy uses the victim to help the rapist


Specifically, Kennedy observes, “It is not at all evident that the child rape victim’s hurt is lessened when the law permits the death of the perpetrator.”  For, you see, the victim will have to testify and meet with law enforcement personnel, and “society … by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice.”


How galling.  Set aside that child victims face similar burdens in non-capital cases and that Kennedy doesn’t meaningfully measure the incremental burden that capital cases impose.  Why shouldn’t prosecutors and the child’s family be trusted to work out sensible arrangements?  How does Kennedy’s concern give him any basis for overriding Louisiana’s law?


I see that Dahlia Lithwick expresses similar concerns, and I don’t dispute her point that “Kennedy’s talk of moral choices smacks of that same paternalism that animated his decision in last year’s partial-birth abortion case.”  As I’ve put it:


“For better or worse, the [partial-birth] opinion is vintage Justice Kennedy. We see this rhetoric in all his opinions.… He writes these pompous, moralizing passages that can understandably drive some folks crazy. What’s significant is that usually he does it in overriding what the majority has done and imposing the left’s view of social policy. Here, he did it in deferring to what had been enacted democratically. And that is a huge difference.”


Unfortunately, in Kennedy v. Louisiana, his moralizing reinforced—or drove—his wrong judgment.

Tags: Whelan


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