SG Seeks Kennedy Rehearing:
The Solicitor General's office has joined the state of Louisiana in requesting reconsideration of the Supreme Court's decision in Kennedy v. Louisiana, in which the Court held the death penalty for child rape to be unconstitutional. This is particularly interesting because the SG did not participate in the case initially, as the office had overlooked the fact that the constitutionality of a federal law -- in particular a provision of the UCMJ providing for the death penalty in cases of child rape -- could be affected by the Court's decision. Lyle Denniston has more details and a link to the motin at SCOTUSBlog here.
What should be the tip point on this question - a dozen states allowing the death penalty for child rape would be sufficient to find it acceptable? Two dozen states? Two dozen states plus the federal government? (I think that here, with the federal government provision recently enacted by Congress, that should probably be enough on what is more a legislative and than judicial determination.) Does "national consensus" mean the majority of states and the collective national opinion as expressed by Congress, or what?
Is this a "show of hands" type question? In what sort of cases, if any, other than these penalty cases, does the Court's decision turn on whether there is a "national consensus" or not? Cut point on IQ sufficient (capax doli) to be executed? Of sufficient age to be put to death for a capital crime?
The fact that a State does not have the death penalty for child rape might be because it feels that the punishment does not fit the crime.
Or, it might be because (1) it believed that prior Supreme Court precedent precluded such a punishment (the Court previously held that the death penalty was unconstitutional with respect to adult rape; or (2) a State does not believe it is worth years of litigation to attempt to enforce the death penalty in such a case; or (3) cases involving child rape where the death penalty is deserved (i.e. with heinous physical abuse -- see the facts in teh Kennedy case) are rare. Perhaps it never occured to anyone in the State that such a case might arise.
So the lack of a death penalty for child rape in any State simply does not prove what Justice Kennedy thinks it proves.
You know, conservatives can make this claim semi-plausibly when we are talking about abortion or other unenumerated rights claims.
But cruel and unusual punishment is an enumerated right, it is phrased in broad language, and the framers gave us little guidance as to how to interpret it. When the Supreme Court has to interpret a broad, ambiguous portion of the Constitution, that really isn't unmoored from its constitutional role.
But you are assuming your conclusion, which is that so long as a punishment is not cruel and unusual for some crime, it cannot be cruel and unusual for any crime. In other words, the death penalty for a parking violation is constitutional.
I realize that Scalia takes that position, but generally, when your interpretation of a legal text leads to patently absurd and abhorrent positions, that's a good guide that it isn't a very good interpretation.
In any event, the broader point is that the framers didn't opine one way or the other on the issue of whether the cruel and unusual punishment clause included a proportionality requirement.
Again, you can argue that Kennedy v. Louisiana was wrongly decided. That's quite arguable. But what I really balk at is the claim that the Supreme Court is somehow acting outside of its power by merely construing the cruel and unusual punishment clause in a manner that conservatives don't agree with.
And the evolving standards of decency doesn't add anything to cruel and unusual. Just Lochner era nonsense.
Also, the fact that the 2 major presidential candidates are in favor of the death penalty for child rapists should probably tell you something about how the public feels. Maybe they can submit amici briefs. You know they can read the polls and have their finger on the pulse better than the 9.
It isn't that they know more. It's that they have been appointed as judges / justices because of their JUDG[E]ment and because they are supposed to do JUSTICE.
In other words, this is their job.
Look, if you guys don't like having a broad, amorphous cruel and unusual punishment clause, propose its abolition. But as long as it is in the Constitution, judges are going to have the power to interpret it. And since it gives little guidance, it is going to come down to what the judges believe.
By the way, this is far from the only provision of the Constitution that gives judges little guidance. When some newfangled kind of search (such as thermal imaging or drug testing) comes to the Court, they have to make a call as to whether it is "reasonable" or not and under what conditions. Fines have to be evaluated to determine whether they are "excessive". There are many examples of this.
This is the Constitution we have. I am sorry that it doesn't always give us the nice bright line rules that conservatives prefer.