Just a couple highlights from Justice Alito’s excellent dissent in Kennedy v. Louisiana:
1. In response to Justice Kennedy’s claim that there is a “national consensus” that it is never acceptable to impose the death penalty for the rape of a child, Alito explains that dicta in the Court’s 1977 decision in Coker v. Georgia “stunted legislative consideration” of the matter by strongly suggesting that such legislation would be held unconstitutional. Nonetheless, “six States have recently enacted new, targeted child-rape laws.” Turning Kennedy’s evolutionary rhetoric against him, Alito nicely observes:
In terms of the Court’s metaphor of moral evolution, these enactments might have turned out to be an evolutionary dead end. But they might also have been the beginning of a strong new evolutionary line. We will never know, because the Court today snuffs out the line in its incipient stage.
2. Alito makes mincemeat of Kennedy’s claim that rape of a child cannot be compared to murder in its moral depravity and in the severity of injury to the victim and the public. Among his observations (see dissent at 20-23): “I have very little doubt that, in the eyes of ordinary Americans, the very worst child rapists—predators who seek out and inflict serious physical and emotional injury on defenseless young children—are the epitome of moral depravity.”