Sorry Justice Kennedy, but rape, especially the rape of a child,
IS comparable to murder.
Today's Supreme Court opinion, in another 5-4
decision, in Kennedy v. Louisiana demonstrates the
fragility of the balance on the Court as we approach this year's election, meaning our choice matters. The five justice majority ruled it was unconstitutional to apply the death penalty to a child rapist.
From the dissent authored by Justice Alito:
"The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penaltyfor the crime of raping a child. This is so, according to theCourt, no matter how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic thecrime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be. The Court providestwo reasons for this sweeping conclusion: First, the Courtclaims to have identified "a national consensus" that the death penalty is never acceptable for the rape of a child;second, the Court concludes, based on its "independent judgment," that imposing the death penalty for child rape is inconsistent with "‘the evolving standards of decency that mark the progress of a maturing society.’" Ante, at 8, 15, 16 (citation omitted). Because neither of these justifications is sound, I respectfully dissent."
And, the dissent concludes:
"In summary, the Court holds that the Eighth Amendment categorically rules out the death penalty in even the most extreme cases of child rape even though: (1) This holding is not supported by the original meaning of theEighth Amendment; (2) neither Coker nor any other prior precedent commands this result; (3) there are no reliable"objective indicia" of a "national consensus" in support ofthe Court’s position; (4) sustaining the constitutionality ofthe state law before us would not "extend" or "expand" the death penalty; (5) this Court has previously rejected the proposition that the Eighth Amendment is a one-way ratchet that prohibits legislatures from adopting new capital punishment statutes to meet new problems; (6) theworst child rapists exhibit the epitome of moral depravity; and (7) child rape inflicts grievous injury on victims andon society in general."
The dissent accurately portrays the activism of the majority and the imposition of those justices' policy positions over the reasoned choices of the other branches in the state and federal governments.
Not specific on this topic, but generally on the Supreme Court ruling state laws unconstitutional, see:
Donald J. Kochan, State Laws and the Independent Judiciary: An Analysis of the Effects of the Seventeenth Amendment on the Number of Supreme Court Cases Holding State Laws Unconstitutional, 66 Albany L. Rev. 1023 (2003).