In his opinion Wednesday for a five-justice majority in Kennedy v. Louisiana, Justice Anthony Kennedy ruled that the Eighth Amendment’s prohibition of “cruel and unusual punishments” forbids imposition of the death penalty for the rape of a child. Or, rather, he ruled that the Court’s modern rewriting of the Eighth Amendment as a license for the Court to impose its “independent judgment” of “the evolving standards of decency that mark the progress of a maturing society” yields that result. If any further evidence were needed that the Supreme Court’s death-penalty decisions have become entirely unmoored from the actual Eighth Amendment — as well as from the good sense of the American people — Kennedy’s opinion provides it.
As Kennedy himself states, the crime committed by one Patrick Kennedy “was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion [of] society.” In brief, Patrick Kennedy raped his 8-year-old stepdaughter and, in so doing, “separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure” and necessitating emergency surgery. But the “hurt and horror inflicted” on the victim of aggravated rape, and the proper “revulsion” of “society” against such crimes, disappears entirely from Justice Kennedy’s analysis. Instead, when Kennedy tells us that “Evolving standards of decency must embrace and express respect for the dignity of the person,” the only person he has in mind is the rapist.
As Justice Alito points out in his dissent, Kennedy’s categorical ban on the death penalty for the rape of a child applies “no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.”
Even apart from the fact that the “evolving standards” framework is not faithful to the meaning of the Eighth Amendment, it is hopelessly malleable, especially in the hands of Kennedy and the four liberal judicial activists — Stevens, Souter, Ginsburg, Breyer — who joined his opinion. As Alito explains, “despite the inhibiting legal atmosphere that has prevailed since 1977” — when dicta in Coker v. Georgia strongly suggested that capital punishment was never permissible for any type or rape — ”six States have recently enacted new, targeted child-rape laws.” As Alito nicely puts it:
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 this week snuffs out the line in its incipient stage.
Reasonable people can and will disagree on whether and when the death penalty should be available as a punishment for serious crimes. We deserve a Supreme Court that lets change evolve, in whatever direction, through the legislative processes, not justices who employ “evolving standards” as a one-way ratchet against the death penalty. John McCain has said that he would appoint judges who will respect the popular will, overturning it only in response to clear constitutional commands and not to their own preferences. Although he has spoken in opposition to Kennedy, Barack Obama has indicated that he falls on the other side of the jurisprudential debate. Too many of our justices are evolving away from democracy. Let’s not elect a president who will encourage them — and appoint more of them.