SCOTUSBlog is reporting that the Supreme Court struck down the Louisiana child rape statute 5-4 in Kennedy v. Louisiana on the ground that the statute punihses conduct not intended to cause death, with AMK writing joined by the four liberals. Stay tuned for more.

  UPDATE: The opinion is here. The opinion is rather Roper-esque, on a first read. AMK concludes that "there is a social consensus against the death penalty for the crime of child rape," and that the Justices in the majority agree with this consensus. From the conclusion:

  Our determination that there is a consensus against the death penalty for child rape raises the question whether the Court's own institutional position and its holding will have the effect of blocking further or later consensus in favor of the penalty from developing. The Court, it will be argued, by the act of addressing the constitutionality of the death penalty, intrudes upon the consensus-making process. By imposing a negative restraint, the argument runs, the Court makes it more difficult for consensus to change or emerge. The Court, according to the criticism, itself becomes enmeshed in the process, part judge and part the maker of that which it judges.
  These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by "the evolving standards of decency that mark the progress of a maturing society." Trop, 356 U. S., at 101 (plurality opinion). Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim.

  One response to Justice Kennedy would be that only the Court "established" this proposition; it seems a bit curious to defend the Court's "enmeshed" role by saying that it must be because the Court has given itself that role (especially when its proper application in this case is far from clear). More broadly, does this passage categorically prohibit the death penalty in cases that do not result in death, such as treason? That would be quite a significant change.

  ANOTHER UPDATE: Justice Alito's dissent is pretty devastating, I think. From the dissent:

  A major theme of the Court's opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that "a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim," ante, at 35, and may discourage the reporting of child rape, ante, at 34--35.
  These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is "cruel and unusual" punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court's policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using " 'the aegis of the Cruel and Unusual Punishment Clause' to cut off the normal democratic processes," Atkins v. Virginia, 536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), (joint opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that warning here.

  Of course, there's a deeper question lurking in the opinions: Is the Eighth Amendment a general tool for invalidating criminal laws that the Justices think are too punitive and therefore unwise? Or is it only a specific tool for invalidating punishments that are way out of the mainstream? I think that's the real 5-4 split on the current Court, and that it explains the vote break-down in this case.