Tribe on Kennedy v. Louisiana:
Harvard law professor Laurence Tribe has an interesting article in today's WSJ on the Supreme Court's decision invalidating the death penalty for child rape and its potential reconsideration by the Court. Here's a taste:
Emphasizing the evolving character of what constitutes an "unusual" if not an unduly "cruel" punishment, the court rested its condemnation of executing the rapists of children largely on what it described as a trend away from the use of death to punish such crimes both here and abroad.
But there was a problem with the court's understanding of the basic facts. It failed to take into account — because nobody involved in the case had noticed — that in 2006 no less an authority than Congress, in the National Defense Authorization Act, had prescribed capital punishment as a penalty available for the rape of a child by someone in the military.
Defenders of the court's decision in Kennedy v. Louisiana would have it ignore that embarrassing wrinkle by treating the military as a parallel universe that simply does not intersect civilian justice on the plane of constitutional principle. But a court searching for universal principles of justice in the name of the Eighth Amendment would be hard pressed to accept that view of the military/civilian distinction. Particularly when the court's division tracks the usual liberal/conservative divide, its credibility depends on both candor and correctness when it comes to the factual predicates of its rulings.
At this point, I think even those who support the original ruling recognize the need for the Court to reconsider its Kennedy decision, even if only to correct the record, and make explicit the actual basis for the Court's decision.
UPDATE: Why "correct the record" if the outcome of the case would be the same? I can think of several reasons. Among other things, the Supreme Court's decision is binding on lower courts, so it is important that its analysis is based upon a correct statement of the law. Furthermore, if (as many suspect) the purported existence of a "national consensus" on the death penalty for child rape had little to do with the Court's holding, the Court should say so, particularly now that the factual basis for the "national consensus" argument has been undermined. If the law of the land is that those punishments that a majority of the Supreme Court finds objectionable or disproportionate when imposed for certain crimes, then the Court should make that clear.
At Bench Memos, Ed Whelan has additional thoughts on Tribe's op-ed, particularly Tribe's . . . um . . . interesting suggestion that the Kennedy opinion could raise equal protection issues.