I know that Dr. Bombay is working on a piece about the Court’s ruling in the child rape death penalty case, Kennedy v. Louisiana, which you can read here, but I wanted to get out ahead of him before his communist propaganda saps and impurifies all of our precious bodily fluids. (Ed Note: bodily fluids reference.)
The Supreme Court in this case basically stated that five Justices of the Supreme Court are better at determining the will of the people of the United States than Congress and the state legislatures are. This is the kind of judicial activism that makes people disgusted with the judicial branch.
I have a real problem with the the legal arguments behind this opinion. Kennedy’s reasoning seems tautological - no one has been executed for these crimes in 40 years, and only six states have enacted child rape capital punishment laws. He uses these facts as a means of justifying the argument that society has decided child rape should not be punished by the death penalty. This is a ridiculous conclusion, given that it was the Court’s jurisprudence that was the reason behind the amount of time since the last execution, and the Court’s dicta in Coker v. Georgia, 433 U.S. 584 (1977) that suggested that the death penalty for any crime not involving the death of the victim would probably not pass constitution muster, made states hesitant to go through the long process of creating a child rape death penalty law - why go through the process if the Court will likely strike the laws down anyway?
Determining whether society’s morals have evolved on capital punishment is not a role for the Court. It certainly shouldn’t be a part of any Constitutional anaylsis framework. It’s a question for Congress and the state legislatures. The Supreme Court here substituted their own morality for the views of the American people. They have now made it effectively impossible to impose the death penalty for any cases that don’t involve the death of the victim. That is a decision that should have been made by the elected representatives of the people themselves, not the Court.
