Supreme Court Rules Again Today

The Supreme Court offered two rulings today, one overturning a Louisiana state law allowing the death penalty for child rapists, the other limiting the penalties paid by Exxon for the 1989 Valez oil spill in Alaska.

The big news, of course, is the rape ruling. There's no shortage of analysis about it, and this is another example of the Court breaking down along ideological lines and overreaching its authority. Some examples of commentary (I'll summarize at the bottom):

Andy McCarthy: Even if you agree with their bottom line, do Justice Kennedy and the justices in Kennedy v. Louisiana have a clue about how offensive it is to write this line in rationalizing why a man who has savagely raped his eight-year-old step-daughter should not be executed by the humane process of lethal objection:

"Evolving standards of decency must embrace and express respect for the dignity of the person[.]"

And as for their "proportional" punishment argue, I think it's silly on its face — read the almost unreadable (because it's so excruciating) account of the rape and ask yourself whether it is really "disproportionate" to administer lethal-objection execution to a man who committed this type of barbaric a sexual assault on a child.

But let's give him that one for argument's sake. The Eighth Amendment talks about punishment that is cruel. First, punishment does not become cruel just because it's disproportionate. And second, are we really striving here for proportionality? If a crime is cruel — as it clearly was in this case — wouldn't a proportionate punishment also have to be cruel, and thus in violation of the Eighth Amendment?

Ed Whelan: Kennedy’s 36 pages of insufferable blather amount to little more than a declaration that the majority doesn’t think that capital punishment is ever a fair penalty for the rape of a child—“no matter,” as Justice Alito puts it in his dissent, “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 the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.”

If I find time, I may focus more attention on Kennedy’s string of assertions. For now, I’ll just call attention to the facts that occasioned Kennedy’s pronouncement that “[e]volving standards of decency must embrace and express respect for the dignity of the person”—the person whose dignity is the object of his concern being the rapist, not the victim and not other future victims.

Matthew J. Franck: Reading on in Justice Kennedy's excursion in moral self-indulgence in the Louisiana child-rape case, we encounter this bit:

Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime.

The italics are mine. The dishonest historical conceit here is that Kennedy writes as though Louisiana were now, after centuries of common, statutory, and constitutional law governing the death penalty, going to impose the penalty for the rape of a child for the first time—and the Court must decide whether the Constitution "allow[s] the extension"!

In truth, of course, what the Court has been doing for several decades now is arrogating to itself the right, under some alleged authorization flowing from the Eighth and Fourteenth Amendments, to progressively restrict the imposition of the death penalty, from its historic application in many kinds of cases at the time of the founding, to just one class of cases today, the narrowest category of aggravated murders.

But it takes a special kind of gall—or judicial obliviousness, more likely in Justice Kennedy's case—to write as though the death penalty's imposition, in a class of cases in which that was historically normal, is some kind of "extension" we must decide whether the Constitution "allows."

UPDATE: I see that Justice Alito, in his dissent, also notices this "extension" language, though he makes a different observation about it. Alito rightly notes that such phrasing runs against the grain of the Court's traditional (and correct) view that "[l]aws enacted by the state legislatures are presumptively constitutional." In other words, for the Court to uphold the imposition of the death penalty for child rape would not be an "extension" of the penalty on the Court's part but only a decision not to use its power to gainsay a valid exercise of legislative authority. After all, "until today, this Court has not held that capital child rape laws are unconstitutional." Right you are, Justice Alito.

Powerline has a good summary:

The Supreme Court's death penalty jurisprudence is unprincipled. Capital punishment certainly was not considered "cruel and unusual" at the time the Constitution was adopted, or for nearly two centuries thereafter. So what the Court has done in recent decades is to make it up as it goes along. Today it held that while it is constitutional for a state to punish murder by death, it is prohibited to punish child rape--in the case at issue, the rape of an eight year old girl by her stepfather--by death. Needless to say, no such distinction appears in the Constitution. It is solely the product of arrogant quasi-politicians who have been in Washington too long.

If you can stomach it, go here to read the entire legal account of what this poor 8-year-old girl endured at the hands of her own stepfather, and then you decide if it's worthy of the death penalty.

So, what we have here is another power grab by the Supreme Court. The historical precedent and Constitutional issues at play indicate that since this is a state law, it is constitutional. Disregarding that minor detail, the Court decided otherwise, overturning laws in five states. Once again, the Court stuck their nose into a place it didn't belong, ignored history and precedent, and magically found a new application for 'cruel and unusual'. All in a day's work for this Supreme Court.

And would someone tell me what this liberal fetish is with having more sympathy for the criminal than the victim? I mean, come on, Justice Kennedy...! You're worried about the dignity of this vile human being who raped his 8-year-old stepdaughter, literally ripping her apart?? I think he voluntarily gave up his dignity when he ruined this little girl's life. What is wrong with liberals that they consistently criminalize the victim and victimize the criminal?

Unreal.

But more fun will come soon - tomorrow the Court is expected to release their long-awaited ruling on the Washington, D.C. gun ban. And, I'm planning to circle back around to the terrorist ruling with more analysis in the coming days, too.

If anything, these rulings should show exactly how important elections are, both in regard to the President and to the Senate. The President nominates the people who populate the federal judicial branch, and the Senate approves them. There can be no doubt that a President Obama will nominate Justices to the far Left who will continue to chip away at the Constitution and American freedoms. McCain, on the other hand, has pledged to nominate Justices like Roberts and Alito. However, even if McCain wins, and even if he nominates well, the Senate can kill any appointment he makes.

So, your vote counts. Not only does it elect our legislative leaders, it dictates the judicial branch, as well. It's hard to imagine anything that could impact your life much more than those two put together.

There's my two cents.