Bench Memos

This Day in Liberal Judicial Activism—October 1

2008—The Supreme Court denies the state of Louisiana’s petition for rehearing in Kennedy v. Louisiana, the case in which the Court held, by a 5-4 vote, that imposition of the death penalty for the crime of raping a child violates the Eighth Amendment. The basis for the state’s petition for rehearing was the Court’s failure, in discerning a supposed “national consensus against capital punishment for the crime of child rape,” to take account of a federal law enacted in 2006 that authorized military courts to impose the death penalty for child rape. The Court had instead mistakenly stated that federal law does not authorize the death penalty for child rape.

Chief Justice Roberts and Justice Scalia—both dissenters from the original ruling—vote against rehearing on the ground that the majority was just making it up all along anyway. As Scalia puts it, in an opinion that Roberts joins:

I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.

Most Popular

Sports

The Dominant-Sport Theory of American Politics

I think it’s safe to assert that President Trump has an unfortunate tendency to do and say (and tweet) embarrassing things. When he does, we all join in the condemnation, and often it’s not so much for the substance as for the style. The president of the United States should be dignified, measured, slow to ... Read More
Film & TV

Little Pink House Speaks Truth to Power

Coming soon to a cinema near you—you can make this happen; read on—is a bite-your-nails true-story thriller featuring heroes, villains, and a history-making struggle over . . . the Constitution’s Takings Clause. Next February 24, Little Pink House will win the Oscar for Best Picture if Hollywood’s ... Read More
Economy & Business

A Trump Trade and Economic Doctrine

If the Treasury Department’s recent semiannual report is any guide, the Trump administration still doesn’t quite get it when it comes to trade imbalances. “The US government has all the tools it needs to achieve balanced trade without risking a trade war,” writes Joseph Gagnon for the Peterson Institute ... Read More
Politics & Policy

The Comey–Trump Dance

I never thought the Comey book would make much news for the simple reason that it would be outrageous if it did. If Comey knew something relevant and important about the Russia investigation that we didn’t already know, he couldn’t possibly put it in his book. Let’s say he did have something big on the ... Read More