Another proud moment

for your federal judiciary, in particular the Supreme Court: Kennedy v. Louisiana. Short story long: executing criminals who rape children is now unconstitutional.

UFB.

Once again, the prime mover and shaker in this decision is Justice Anthony Kennedy, who has become more erratic than Ted Kennedy on a Massachusetts bridge. With just about as much sympathy for crime victims. Michelle Malkin has the details of the heinous crime at issue in this case, committed by one Patrick Kennedy, no relation to the justice or, for that matter, the senator, at least as far as I know.

Note to lawyers, and, in particular, judges: "Evolving standards of decency" is not law. It is opinion. And it is opinion usually only held by judges, trial lawyers and leftist law faculty.

Andy McCarthy:

Even if you agree with their bottom line, do Justice Kennedy and the justices in Kennedy v. Louisiana have a clue about how offensive it is to write this line in rationalizing why a man who has savagely raped his eight-year-old step-daughter should not be executed by the humane process of lethal objection:

"Evolving standards of decency must embrace and express respect for the dignity of the person[.]"

And as for their "proportional" punishment argue, I think it's silly on its face — read the almost unreadable (because it's so excruciating) account of the rape and ask yourself whether it is really "disproportionate" to administer lethal-objection execution to a man who committed this type of barbaric a sexual assault on a child.

But let's give him that one for argument's sake. The Eighth Amendment talks about punishment that is cruel. First, punishment does not become cruel just because it's disproportionate. And second, are we really striving here for proportionality? If a crime is cruel — as it clearly was in this case — wouldn't a proportionate punishment also have to be cruel, and thus in violation of the Eighth Amendment?

Wouldn't it be refreshingly honest if activist justices just bluntly us: "We don't like the death penalty and we can stop it because there are five of us." Sure, it would be tyrannical, but at least it would be accurate, and not nearly as nauseating as what passes for reasoning in these cases.

Allahpundit:

The interpretive dilemma for “cruel and unusual punishment” is the same as for all constitutional clauses, except more starkly so: If you follow the originalist model here and define the term by using the Founding Fathers’ standards, then conceivably it’s constitutional to let prisoners be drawn and quartered. Rather than let the amendment process of Article V deal with that, though, the Court long ago decided that “cruel and unusual” should be determined according to society’s “evolving standards of decency.” How do they determine what those standards are? Simple. They use their own standards of decency, then go look for whatever data they can scrounge about social attitudes to make it seem like they’re taking the culture’s pulse. One might suggest, as Alito does, that a better gauge of society’s standards in a democracy are the actual laws that it passes — like, say, laws punishing child rape with death — but in that case, every duly enacted punishment would be constitutional per the Court’s test. So we’re stuck with this charade where the majority pretends that it’s divined some sort of National Ethos against executing child rapists and that it’s merely applying that Ethos instead of imposing its own judgment of what’s right and what’s not and dressing it up as the people’s will.

The irony (just one of many, like why, if this National Ethos exists, the Court doesn’t leave it to the public to pass a constitutional amendment formally recognizing it, or why, per Alito, the Court won’t acknowledge that it’s own prior rulings on the death penalty have prevented a true National Ethos from freely forming) is that America’s standards have actually evolved to be more sensitive to crimes committed against kids. Never has public awareness been greater of how abuse affects children psychologically, and virtually no one disputes that rape, let alone rape of a child, can be life-ruining. Look at the FLDS case, where the possibility of underaged girls being preyed on by men caused a national uproar. No wonder, then, that some states want to raise the penalty on a particularly vicious strain of child abuse. If Kennedy and his pals in the majority were honest about divining the National Ethos, they’d acknowledge that. But as I say, the “evolving standards” line is a scam in the same way that it’s a scam in other cases when the Court tries to divine international standards of opinion by citing statutes from European countries — but never from, say, Saudi Arabia or Iran. (Point being, they shouldn’t be citing foreign law at all.)

[...]

The ultimate irony here is that they’re using an ad hoc metric — the “evolving standards” test that theoretically changes day by day (but only ever towards greater “progressivism”) — to institute what’s actually a fixed, bright-line rule. No death except as repayment for death, because if they allow capital punishment for child rape, what’s next? Capital punishment for violent assault? For larceny, a la 17th century England? Either is unlikely in the extreme, but partly because they don’t trust the public and partly because they know their own test is crap and don’t trust it to produce persuasive distinctions between child rape and some lesser crime in a future case, they’ve decided to simply take the issue off the table. That is to say, after paying lip service to letting the will of the people guide them and trusting the “evolution” of American culture to go the right way, the Court ends up with a diktat set in stone that’s aimed squarely at preventing the sheeple from executing people for petty crimes at some dark distant point down the road. Perfect.

Of course, if I had my way, we would have the death penalty for assault and larceny, as well as murder, rape, residential burglary, car theft, arson ... anything that hurts another, particularly since nothing else seems to deter property crimes, but the victims never truly get over them.

Was this judicial bootstrapping? Ramesh Ponnuru:

Justice Kennedy's opinion for the Court argues that there is a national consensus against executing child rapists, as evidenced by the fact that only six states have provisions for such executions. Justice Alito's dissent points out that one reason few states have such provisions is that in an earlier case, Coker, the Supreme Court had prohibited the imposition of the death penalty on the rapists of adult women—and called into doubt whether it would permit executions for anything other than murder. One act of activism thus provides a spurious legitimacy for another.

Ah, Justice Kennedy. Where SCOTUS once stood for rule of law, it now stands for rule by whim, thanks in large part to Justice Kennedy. Ed Whelan:

Given previous rulings like Roper v. Simmons (see This Week for March 1, 2005), Justice Kennedy’s opinion in Kennedy v. Louisiana was entirely predictable, but that doesn’t make it any less appalling as a matter of supposed constitutional law.

[...]

If I find time, I may focus more attention on Kennedy’s string of assertions. For now, I’ll just call attention to the facts that occasioned Kennedy’s pronouncement that “[e]volving standards of decency must embrace and express respect for the dignity of the person”—the person whose dignity is the object of his concern being the rapist, not the victim and not other future victims.

"Evolving standards of decency" now means "the whim of Justice Kennedy." Remember Roper v. Simmons, in which SCOTUS outlawed the death penalty for "minors" based in part on world public opinion and a "consensus" against the practice here in the U.S. Power Line's John Hindraker commented:

...Roper is troubling for reasons that go well beyond the majority's reliance on foreign opinion and practice. Just 16 years ago, in Stanford v. Kentucky, a different 5-to-4 majority held that it did not violate the 8th Amendment to execute juveniles aged 16 to 17. Roper overruled Stanford in what can only be seen as a naked flip-flop. In Roper, Justice Kennedy argued that the juvenile death penalty has become more "unusual" since 1989 because in the intervening years five states have switched from allowing to prohibiting the execution of juvenile offenders. But it is frankly absurd to argue that a practice that is approved by the legislatures and courts of 20 states is "unusual" within the meaning of the 8th Amendment. The fact that some states make a policy decision against juvenile execution through legislative enactment hardly implies that such a policy decision is Constitutionally mandated.

In reality, the difference between Stanford and Roper does not lie in the number of states that, at the relevant time, permitted the execution of juveniles--25 versus 20--but rather in the composition of the Supreme Court itself. What made the difference in the outcome was that Justice Kennedy changed his mind. In 1989 he voted with the majority, holding that execution of juveniles was not Constitutionally prohibited. Last week, he voted the opposite way. The Constitution didn't change; Anthony Kennedy did.

"Evolving standards of decency" is just code for "the whim of Justice Kennedy." No wonder public confidence in SCOTUS is cratering.

Is this how the Founding Fathers intended for our government to perform? How is the whim of a SCOTUS justice any different in legitimacy from the whim of the King of England?

(crossposted at Pro Cynic and Circle City Pundit)