Last month I offered some analysis of Kennedy v. Louisiana, the case from June in which the Supreme Court ruled that executing child-rapists constitutes Cruel and Unusual Punishment. I discussed my views on how the five Justices in the majority had further loosened the standard for finding a national moral consensus that a punishment is grossly disproportionate and then fully rendered that standard nonsensical (assuming it wasn’t already) by announcing that community standards could only evolve in one constitutionally-cognizable direction: toward more restrictive use of the death penalty. In this portion I'll discuss a third major point of constitutional doctrine to come from the case and the overarching practical lesson from the majority opinion about the future of the death penalty in America.
3. Despite all of the Court’s discussion about evolving standards of decency and its further lowering of the bar for proving a national moral consensus, Kennedy probably confirms that the "independent judgment" of the justices taken alone is enough to declare a death sentence disproportionate.
As in previous cases like Atkins and Roper, the Court’s analysis in Kennedy consists of two parts. The first, discussing how standards of decency have supposedly evolved, I’ve already addressed. The second is the majority Justices’ announcement of their “independent judgment” about whether the death penalty is a proportionate sentence for child rapists. As you either know or have guessed from my setup, Justices Kennedy, Stevens, Souter, Ginsburg, and Breyer declared that in their moral/policy judgment the imposition of the death penalty for child rape is unjustified.
Now, I have a ton of problems with the notion that the Eight Amendment somehow gives Justices free reign to decide whether a punishment is grossly disproportionate for a given crime based on their own moral and policy attitudes. But, for purposes of this post (and because those problems have been covered extensively elsewhere), let me stick to the doctrinal change to independent judgment analysis that appears to have come to full fruition in Kennedy. Or, put more exactly, the change in the relationship of the Justices’ exercise of their independent judgment to the evolving moral standards of society about proportionality and the death penalty.
As recently as Atkins in 2002, a majority of the Court strongly implied that the independent judgment of the Justices only comes into play after the Court has concluded that a societal consensus exists that a punishment is disproportionate. For instance, to quote Justice Stevens’s majority opinion in that case: “Thus, in cases involving a consensus, our own judgment is brought to bear, by asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.” (Citation and quote marks omitted, emphasis added.) Furthermore, in announcing the Atkins majority’s independent judgment, Justice Stevens explained that the majority had “no reason to disagree” with the supposed consensus against executing mentally retarded defendants.
But this language suggesting that independent judgement should only be used to essentially double check a finding of moral consensus was not repeated by Justice Kennedy in his 2005 majority opinion in Roper. Instead, Justice Kennedy stated that national consensus inquiry merely provides the Court with “essential instruction”; at the end of matter the Justices’ independent judgement is decisive. In the Kennedy case. the majority stuck with and entrenched this subtle but important change. Indeed, the Court made it abundantly clear which consideration was the superior:
As we have said in other Eighth Amendment cases, objective evidence of contemporary values as it relates to punishment for child rape is entitled to great weight, but it does not end our inquiry. The Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment. We turn, then, to the resolution of the question before us, which is informed by our precedents and our own understanding of the Constitution and the rights it secures. (Citations and quotation punctuation omitted.)
And that, as they say, is that.
It’s true that the Court (at least to my knowledge) has never found a death sentence in line with national moral values but declared it grossly disproportionate anyway in an exercise of the Justices’ independent judgment. It’s also true that because of the Court’s recent removal of whatever stringency national consensus analysis may have once had that scenario will probably never come to pass. Still, Kennedy (following on the heals of Roper) suggests that even if the Court were to conclude that a death sentence didn’t contradict a national moral consensus it could still --in an almost unvarnished use of what can only be called natural law judging-- strike it down.
The Overall Lesson of the Case
In the wake of Kennedy it is evident that a majority of the current Justices, led by Justice Kennedy (no reference to the case name intended), have launched a multi-part attack on the national moral consensus standard, with the result that at this point it’s nearly moot. National moral views can only evolve in one constitutionally cognizable direction: towards greater limitations on the types of crimes and defendants that can be punished by death. Proving that the a new “consensus” has taken hold is easy, even where a majority of states that allow the death penalty authorize it for the type crime or defendant in question. And if a supposed consensus is the result not of the collective moral and policy judgments of legislators but of mere obedience by legislators and judges to the Court’s past dicta? Doesn’t matter. And should a future Court be honest enough to admit that a consensus doesn’t exist (or actually exists in favor of the constitutionality of imposing death for a certain crime)? A majority of Justices can openly follow what they feel is right and wise in their independent judgement anyway.
Don’t misunderstand me, Justices Kennedy, Souter, Stevens, Breyer, and Ginsburg aren’t likely to completely bar the death penalty in the near future. The Atkins/Roper/Kennedy five aren’t stupid: they know that in the current political environment announcing that the death penalty is completely invalid would result in a massive public backlash against the Court and, quite possibly, a constitutional amendment negating the move. Additionally, laws that are shared by all or almost all jurisdictions that have the death penalty (eg. provisions allowing juries to sentence cop-killers to death) are probably safe in the near term. But there can be little doubt that unless the balance of votes on the Court shifts or Congress and the States pass a preemptive constitutional amendment the Court will continue pushing America, step by step and regardless of actual popular attitudes, along “the road to full progress.”