Wednesday, June 25, 2008

Another Term, Another Major and Crapulent Death Penalty Opinion from Justice Kennedy

A few minutes ago, the Supreme Court issued an opinion, in Kennedy v. Louisiana, that at first glance appears to prohibit imposition of the death penalty for all crimes rather than capital murder. The first link to the 5-4 decision is here. Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Scalia, dissented.  More later.


Alex said...

I say this not as a reactionary or a Scalia acolyte, but the "evolving standard of decency" interpretive approach is a significant problem.

Supreme Court opinions are the commands and benchmarks of our society that is governed by law and aspiring to rationality.

The entrenchment of so fundamental an error in the vanguard of our rationality leaves nothing safe -- everything down-rank is subject to its corrosive, relativistic effects. Maybe there will be a shift in the Court or an amendment; but maybe, 10 years from now, 5 justices will conclude that society has evolved past the death penalty for any crime (or perhaps they will enshrine another artifact of modern life in the pantheon of substantive due process, etc.)

I may, of course, be overreacting. In fact, the outcome itself is not outrageous -- although it should have been brought about, if at all, by other means.

One small textual note. Brian, I think the opinion leaves room for the death penalty for cases in which the defendant intended to kill, but did not.

Brian said...


I won't say too much in reply to your comment here because I'm working on a more indepth post about the Kennedy case (hopefully that will be up tomorrow), but I agree with you 100 percent on the illegitimacy of "evolving standards of decency" inquiry. Indeed, the Court has gone further even than that, asserting that, in the end, that the "independent judgment" of the Justices on the moral proportionality and policy wisdom of the death penalty is determinative. But more on that over the weekend.

As for your other point, I think I have to disagreed about the effect of the case in instances where the offender intended to kill but didn't succeed. Although the direct language in the opinion is unclear on the point, the reasoning of the opinion strongly differentiates between situations where the victim dies and every other kind of situation involivng a crime against a person. If I were a judge, I think I'd be forced to conclude that a murder is required.