The Magazine

Supremely Screwed Up

A do-over for the High Court?

Aug 4, 2008, Vol. 13, No. 44 • By TERRY EASTLAND
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That was one of the two rationales for the Court's decision. The other was the Court's "independent judgment that the death penalty is not a proportional punishment for the rape of a child." Justice Kennedy didn't say whether the majority leaned more on its view of national consensus or its own independent judgment about disproportionality. In the event of a rehearing and a revised opinion, the Court probably wouldn't want to rest its decision just on its own independent judgment, as the Court then would be saying it had been wrong about national consensus, and it would be more nakedly pitting its own moral judgment against that of an ostensibly self-governing people. That's a reason to think the Court would do all it could to maintain its national-consensus position.

If the Court finds itself in a tough place in Kennedy v. Louisiana, it's a place of its own making. The legal text the Court used to void the death penalty statute in Kennedy is, of course, the clause in the Eighth Amendment barring "cruel and unusual punishments." As originally understood, the clause contained no proportionality principle and prohibited only cruel methods of punishment that were already unusual when the amendment was added to the Constitution in 1791. As such, the clause left--and should still leave--ample room for the political branches to legislate (or ban) the death penalty as they see fit. But long ago the Court departed from the original meaning of the clause and embarked on its continuing mission to sharply constrain the use of the death penalty.

Some years ago Justice Antonin Scalia captured the essence of the problem that the Court's mission poses when he noted that "there is something to be said for popular abolition of the death penalty," but "there is nothing to be said for its incremental abolition by this Court."

Kennedy v. Louisiana is another incremental abolition, since in no previous case did the Court nullify a capital child-rape law. If there is a rehearing, perhaps the justices can tell us whether they read their own decision in Kennedy as it can only be read: as invalidating the federal statute they didn't know about.

Terry Eastland is the publisher of THE WEEKLY STANDARD.