Bench Memos

And Historically Dishonest to Boot

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.

Most Popular

Elections

The First Debate Showed Why Biden Will Win

Joe Biden is not Hillary Clinton, and that will be enough to win him the election this November. This much has been clear since Super Tuesday this year during the Democratic primaries. In 2016, Hillary split several very important states with Bernie Sanders on Super Tuesday, and those she won, she won without ... Read More
Elections

The First Debate Showed Why Biden Will Win

Joe Biden is not Hillary Clinton, and that will be enough to win him the election this November. This much has been clear since Super Tuesday this year during the Democratic primaries. In 2016, Hillary split several very important states with Bernie Sanders on Super Tuesday, and those she won, she won without ... Read More
Elections

The Jerry Springer Debate

It’s a shame that Joe Biden couldn’t attend Tuesday night's debate. Okay, Biden was in attendance, but during the 90 minutes, it felt like he barely ever finished a complete sentence. It’s not clear that President Trump necessarily won the night, in the sense that people who were leaning against ... Read More
Elections

The Jerry Springer Debate

It’s a shame that Joe Biden couldn’t attend Tuesday night's debate. Okay, Biden was in attendance, but during the 90 minutes, it felt like he barely ever finished a complete sentence. It’s not clear that President Trump necessarily won the night, in the sense that people who were leaning against ... Read More
Elections

The Debate Dumpster Fire

On the menu today: You know what we’re talking about today -- that Godforsaken festival of incoherent crosstalk that was allegedly a presidential debate. It Figures That a Dumpster Fire of a Year Like This Would Bring Us a ‘Debate’ Like This Last night, I thought the first presidential debate of the ... Read More
Elections

The Debate Dumpster Fire

On the menu today: You know what we’re talking about today -- that Godforsaken festival of incoherent crosstalk that was allegedly a presidential debate. It Figures That a Dumpster Fire of a Year Like This Would Bring Us a ‘Debate’ Like This Last night, I thought the first presidential debate of the ... Read More
Elections

Everybody Loses, Which Helps Biden

Reactions to tonight's debate will likely be deeply polarized, as everything else is. There are a few things that are clear. One, this was probably the worst presidential debate in American history. There was a ton of cross-talk and shouting down, there were many bald-faced lies and obvious evasions, a former ... Read More
Elections

Everybody Loses, Which Helps Biden

Reactions to tonight's debate will likely be deeply polarized, as everything else is. There are a few things that are clear. One, this was probably the worst presidential debate in American history. There was a ton of cross-talk and shouting down, there were many bald-faced lies and obvious evasions, a former ... Read More
Elections

Trump Did Himself No Favors

The debate was a remarkable example of the fact that Donald Trump, the most self-serving man in America, doesn’t know how to do himself any favors. For the first ten or twelve minutes of the debate, he was walking away with it — Trumpy, sure, but in control and surprisingly reasonable-sounding. If he had ... Read More
Elections

Trump Did Himself No Favors

The debate was a remarkable example of the fact that Donald Trump, the most self-serving man in America, doesn’t know how to do himself any favors. For the first ten or twelve minutes of the debate, he was walking away with it — Trumpy, sure, but in control and surprisingly reasonable-sounding. If he had ... Read More

Chaos in Cleveland

The 90 minutes of “debate” between President Donald Trump and former vice president Joe Biden cannot be told as a cohesive story, or reduced to a few bottom lines. It was too fast and too disorganized. Almost anyone watching would have just picked up impressions along the way. I’ve grouped mine into piles ... Read More

Chaos in Cleveland

The 90 minutes of “debate” between President Donald Trump and former vice president Joe Biden cannot be told as a cohesive story, or reduced to a few bottom lines. It was too fast and too disorganized. Almost anyone watching would have just picked up impressions along the way. I’ve grouped mine into piles ... Read More