An Indecent Decision
EDITORIAL An Indecent Decision What are the scariest words in constitutional law these days? “Justice Kennedy delivered the opinion of the Court.” Earlier this term, Kennedy wrote the 5-4...
...Earlier this term, Kennedy wrote the 5-4 opinion that extended habeas corpus rights to foreigners captured abroad and held on foreign soil...
...Kennedy acknowledged that “in the last 13 years there has been change towards making child rape a capital offense...
...Indeed, the next president will have the opportunity to shape the Court for the next generation...
...Here the justice broke out his well-worn “evolving standards of decency...
...For his next trick, Kennedy wrote last week another 5-4 opinion declaring the death penalty for child rapists unconstitutional...
...Of course there is...
...No more Justice Kennedys...
...This was a victory for the terrorists held at Camp Delta in Guant?namo Bay, Cuba, who now can challenge their detention in federal courts...
...But this judicial beancounting ignores the diffi culties legislatures face in enacting capital punishment laws thanks to recent Supreme Court precedent...
...Or is it evidence of unevolved standards to think so...
...Better to just make up the norms instead...
...In so doing, the Court invalidated statutes in six states and quashed similar laws under consideration in fi ve other states...
...But Obama has also said his model justices include some of those who voted with the majority...
...That “incongruity” is never fully explained...
...That is why we elect legislatures to write statutes that determine which punishments fi t which crimes...
...Chalk this up as an emphatic defeat for constitutional self-government and a victory for petitioner Patrick Kennedy, the New Orleans man who in 1998 brutally raped his then-8-year-old stepdaughter...
...How did he determine this...
...The intellectual backfl ips Justice Kennedy performed in his opinion would be impressive if they weren’t so offensive to constitutionalist sensibilities...
...Meanwhile, Obama voted against Justice Roberts and Alito, both of whom dissented from the Court’s ruling...
...He noted that “this is evidenced by six new death penalty statutes, three enacted in the last two years...
...Next, Kennedy concluded that the “death penalty is not a proportional punishment for the crime of child rape...
...But dismiss them is exactly what the majority did when it decided by fi at that there is an “incongruity between the crime of child rape and the harshness of the death penalty...
...By observing that only six states have statutes allowing the death penalty in such cases...
...Kennedy wrote, “the rule of evolving standards of decency . . . means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application...
...That fi ve States may have had pending legislation authorizing death for child rape is not dispositive,” he wrote, “because it is not this Court’s practice . . . to fi nd contemporary norms based on legislation proposed but not yet enacted...
...The majority did not rule that the death penalty is unconstitutional...
...This implies that no state may deem among the “worst of crimes” the irrevocable sexual violation of an innocent, however young...
...Why not...
...Justice Kennedy said the death penalty remains applicable to drug kingpins...
...Every type of crime is distinct...
...He could take this opportunity to explain how his judicial philosophy differs from Obama’s, and why it matters...
...Matthew Continetti, for the Editors...
...Some might see here evidence of a shift in public opinion...
...There is a distinction,” he wrote, “between intentional fi rst-degree murder on the one hand and nonhomicide crimes against individuals, even including child rape, on the other...
...The reasoning is terribly fl awed...
...Is it really so indecent of some legislatures to think the rape of an 8-year-old merits the same sanction as homicide...
...Kennedy (no relation to our justice) was sentenced to death in 2003...
...Both John McCain and Barack Obama said they disagreed with Justice Kennedy’s opinion...
...Now he’ll live...
...At the time of the ruling, fi ve additional states were considering allowing the death penalty in cases of child rape...
...You don’t have to support the death penalty in order to fi nd the Court’s decision appalling...
...By contrast, 44 States have not made child rape a capital offense...
...Kennedy admits that “rape has a permanent psychological, emotional, and sometimes physical impact on the child...
...Such a right had never been granted in American history...
...It’s simple...
...We cannot dismiss the years of long anguish that must be endured by the victim of child rape...
...For his part, McCain says he’ll appoint more justices like Roberts and Alito...
...There’s a political lesson here, which is that the fi ght to turn the Court from a capricious and imperious vanguard of liberalism into an impassive umpire is far from over...
...Not Kennedy...
...Nor did it rule that capital punishment will henceforth be limited to homicide...
...First, the justice argued that “there is a national consensus against capital punishment for the crime of child rape...
...Aren’t recidivist child predators at the very least as morally depraved as narcotraffi ckers...
Vol. 13 • June 2008 • No. 41
