Bench Memos

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The Kennedy Rule Holds


Recently I remarked here on the “Kennedy Rule”: that when the Court decides 5-4 that any government has done anything contrary to the Constitution, and Justice Kennedy was one of the five, the case was wrongly decided.  And its corollary: if Justice Kennedy writes the opinion of the Court in such a case, it will be incoherently reasoned.

So it is in today’s Kennedy v. Louisiana ruling invalidating the imposition of the death penalty for the rape of a child.  Ed Whelan has already quoted some of Justice Kennedy’s “insufferable blather,” including his statement that “[e]volving standards of decency must embrace and express respect for the dignity of the person”–the rapist, that is.  That paragraph ends with this:

[R]etribution [as a rationale for punishment] . . . most often can contradict the law’s own ends. This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.

These are the accents of the moralist and the legislator.  They are not those of a judge adjudicating a case under the law of the Constitution.  But Anthony Kennedy has never known the difference.


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