Reading on in Justice Kennedy’s excursion in moral self-indulgence in the Louisiana child-rape case, we encounter this bit:
Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime.
The italics are mine. The dishonest historical conceit here is that Kennedy writes as though Louisiana were now, after centuries of common, statutory, and constitutional law governing the death penalty, going to impose the penalty for the rape of a child for the first time–and the Court must decide whether the Constitution “allow[s] the extension”!
In truth, of course, what the Court has been doing for several decades now is arrogating to itself the right, under some alleged authorization flowing from the Eighth and Fourteenth Amendments, to progressively restrict the imposition of the death penalty, from its historic application in many kinds of cases at the time of the founding, to just one class of cases today, the narrowest category of aggravated murders.
But it takes a special kind of gall–or judicial obliviousness, more likely in Justice Kennedy’s case–to write as though the death penalty’s imposition, in a class of cases in which that was historically normal, is some kind of “extension” we must decide whether the Constitution “allows.”
UPDATE: I see that Justice Alito, in his dissent, also notices this “extension” language, though he makes a different observation about it. Alito rightly notes that such phrasing runs against the grain of the Court’s traditional (and correct) view that “[l]aws enacted by the state legislatures are presumptively constitutional.” In other words, for the Court to uphold the imposition of the death penalty for child rape would not be an “extension” of the penalty on the Court’s part but only a decision not to use its power to gainsay a valid exercise of legislative authority. After all, “until today, this Court has not held that capital child rape laws are unconstitutional.” Right you are, Justice Alito.