One of the most disingenuous things about Justice Kennedy’s statement on the denial of rehearing is his effort to befog the question whether the death penalty for child rape is now forbidden by the Court’s “reading” (more like “writing”) of the Constitution in the military context as well as the civilian one. Kennedy treats this as an open question, as though his reasoning in the original Kennedy v. Louisiana opinion did not already slam it closed. Justice Scalia has his number, of course: “It is difficult to imagine . . . how rape of a child could sometimes be deserving of death for a soldier but never for a civilian.” Scalia could have said more. The Supreme Court has first unknowingly, now with a la-di-da and a faint blush on Justice Kennedy’s cheeks fading fast, declared effectively unconstitutional a death penalty statute passed by the Congress just two years ago by votes of 374-41 in the House and 95-0 in the Senate, and driven home just last year by a presidential executive order. And it has done so by manufacturing a “consensus” to the contrary of this solemn act of our national legislators, as a cover for its own willfulness and ultra vires decision-making.
It is telling that Scalia sees the central question as who is “deserving of death” for various crimes. For as he well knows, the Court has set itself up as our moral censor in these matters. I would go farther than Scalia does in the lines Ed quotes below. I have never seen the historical warrant for the Court involving itself in the moral calculus of desert when it comes to the interpretation of the Eighth Amendment. The best way to make sense of the phrase “cruel and unusual punishments” is to see it as referring to punishments that are off-limits as such. Death in itself is a permissible punishment; although ways of inflicting it could be prohibited, it is not the business of the Court to gainsay legislative choices about the crimes for which it is a proportionate penalty. Once admit that the clause has to do with such questions of moral proportionality, and you are on the road to today’s anti-constitutional absurdities–with or without the added fillip of “evolving standards of decency,” which is only a rationalization for judicial interference with legislative choices.