Kennedy v. Lousiana, Take Two

by publius

It happens from time to time, but my initial post on Kennedy v. Louisiana was wrong. I disagree with the decision. That said, I think it’s a plausible decision – and it certainly doesn’t justify the hyperventilating cries of illegitimacy from conservatives that seem to accompany every decision that they disagree with (more on that in my next post).

But it’s a bad opinion. It’s not merely that the methodology is shaky. Even assuming you accept the methodology, the Court’s result doesn’t seem consistent with that methodology.

To back up, constitutional law decisions always have two key parts: (1) the result; and (2) the reasoning (i.e., the methodology or doctrine or framework). For instance, imagine the Supreme Court said (a) Gitmo detainees have habeas rights; (b) because Publius says they do and he’s infallible. That’s the correct result, but the reasoning is a wee shaky. More to the point, the methodology adopted will lead to bad things, even if we like the result it produced in this particular case.

It’s easy to lose sight of it in political debates, but constitutional law is often a battle of competing methodologies. And if you want to be cynical, certain Justices favor certain methodologies because they generally produce results they like. Originalist methodology, for instance, was heavily motivated by hostility to the Warren Court. True, originalism sometimes produces results conservatives don’t like, but those are the operating costs of adopting politically favorable methodologies.

So with the result/reasoning distinction in mind, we can better understand the problem with Kennedy. It’s not only that the methodology itself has some serious problems. It’s that the methodology suggests a different result. It gets a bit denser below the fold.

First, let’s look at the reasoning and then we’ll analyze the result.

The Reasoning

When assessing whether a punishment violates the 8th Amendment, the Court looks at (1) whether there’s a national consensus against that punishment (e.g., most states have outlawed; punishment is rarely used, etc.); and (2) its own independent judgment of whether the sentence is proportionate to the crime. Both prongs provide independent grounds for striking down the sentence. For instance, the Court may find no national consensus under #1, but still find that the sentence is disproportionate under #2.

Regardless of what you think of the result in Kennedy, this methodology has some serious problems – and it provides expansive power to the Court.

First, the national consensus test is problematic because it cuts off the possibility of future change. It claims to look at evolving standards, but in truth freezes in time the standard that exists when the decision comes down.

But that’s small potatoes compared to prong #2 – the Court’s independent judgment. I don’t know how else to say this, but this is all fancy legalese for saying “we’ll do what we want.” That’s not to say it’s illegitimate – the Eighth Amendment language is extremely vague and subjective (“cruel and unusual”). You could certainly argue that the Constitution has delegated sweeping, plenary power to courts to make these calls in Eighth Amendment cases. In other words, maybe the correct textualist and/or originalist methodology here is “we’ll do what we want.”

I disagree with that view as a normative matter, but it’s not a crazy or illegitimate one. The reason I personally disagree is because I think restrained judiciaries and empowered legislatures (1) have on balance been better for progressives for most of American history; and (2) are more democratic. (One exception is the Jim Crow South when the political process didn't work. That's why I think activism is most justified when the political process breaks down -- that's a whole different post though. In short, I'm a process theory guy).

The Warren Court is in many ways an anomaly. I fear the judiciary a lot more than many progressives do. And if McCain wins, and Democrats simultaneously sweep into office across state and national governments, this concern will become more than theoretical. You’ll have a Bush/McCain judiciary passing judgment on Democratic laws.

The Result

We could argue all day about the methodology, but let’s assume this methodology is sound, or that it’s at least binding. What’s truly troubling about Kennedy is that the reasoning (i.e,. the methodology) seems to compel a different result (both prongs of it in fact).

As for the consensus, it’s true that a large majority of states don’t impose capital punishment for child rape. But the trend has been going in the opposite direction – several states HAD recently imposed such punishments in recent years. In Roper, the movement of 5 states was legally relevant in determining whether a “trend” existed. Here, by contrast, six states had recently imposed capital punishment, but the Court dismissed it, finding that a national consensus still existed.

In short, the Court’s calculation of a consensus seems in tension with the way they had calculated it in prior cases.

What’s more, there’s a strong argument that most states thought that Coker (an earlier case banning capital punishment for adult rape) also banned child rape. Thus, the existence of a consensus may well be the effect of an earlier case that had prevented a new trend from forming in the first place. (Scott Lemieux, however, raises some strong arguments against this view).

So that’s prong #1. But even the analysis under prong #2 (the independent judgment of proportionality) has problems. Most obviously, the majority used Coker in inconsistent ways.

In this prong, the Court cited Coker to provide authority for their judgment that the sentence was not proportionate to the crime. But in the earlier analysis about national consensus, the Court had limited Coker and said it didn’t really apply. That’s because the Court didn’t want to concede that it itself had created the consensus on which today's decision was based.

We can all have good faith debates about the methodology and the proper results under that methodology – but this was a sloppy opinion. And even if you agree with the Court’s result, I’d ask you to engage the methodology arguments too. Who knows, maybe you can convince me to change my mind again.

Comments

[Scott Lemieux]

I think you've raised the strongest objection against the decision: taking a relatively generalized position of judicial restraint. Nobody on the Supreme Court actually does this in practice, which I think limits its usefulness in practice, but it's reasonable. On the other hand, I think that the argument for a "consensus" is much stronger than in the prior cases. Only a small minority of states have the death penalty for such cases, and it has almost never been used even in the states where it nominally exists. (I think there's a comparison with Furman here; getting the death penalty for sexual assault seems to me "cruel and unusual" in the struck-by-lightning sense.) On a literal level, there's virtually never a genuine "consensus" on any issue that could get to the Supreme Court, but in the more reasonable Warren Court sense of "the Court is more justified in applying ambiguous constitutional language against obvious outliers," I think this case qualifies.

I am compelled to reiterate, however, that Alito's assertion that legislatures were intimidated by dicta in the Coker plurality into suppressing their strongly held policy beliefs is at least as tendentious and implausible as anything in the majority opinion. (The fact that he mentions the Marshall/Brennan concurrences that states have an extensive record of completely ignoring gives away the show.)

[CharleyCarp]

Accord with SL.

But what did you think of the Confrontation case?

[a-train]

"I don’t know how else to say this, but this is all fancy legalese for saying 'we’ll do what we want.'"

Um, when has this not been the case with the SCOTUS? Seriously. The court has tremendous political power. And there is no way an institution with that kind of power is going to be "restrained" in its exercise of that power by a judicial philosophy (regardless of how reasonable or how popular it is). It just ain't gonna happen. Even those on the court who are purportedly most sympathetic to restraint are not restrained (see, e.g., Bush v. Gore).

In other words, say you convinced progressives that it would be better to argue/fight for a restrained court, it still would never restrain the court. Not the nature of power.

[publius]

Scott - I don't think it's restraint so much as it is playing fast and loose with the doctrine (a fairly progressive-friendly doctrine at that).

On other matters, I agree that legislatures don't care re coker. But, I think the potential argument is stronger as applied to state COURTS (remember too that capital punishment was completely banned for several years until 1976 or whenever it was).

But even putting that aside, one problem with Coker is that the majority is forced to treat it in different ways -- and it undermines their credibility I think.

Personally, I'd be ok to get rid of the whole consensus business and just say "the Constitution gives us wide power here and we say this is wrong for policy reasons x, y, z (eg, outlier, bright-line, we're not savages, etc.).

If you get rid of the consensus test, then Coker doesn't matter as much. You can instead use it only for the independent judgment prong (without worrying about how to square it with the consensus analysis).

One other point -- and tell me if you disagree -- it seems as if Alito basically accepts the methodology of Roper and Atkins. One fear (if you like those cases) is that this case undermines their legitimacy.

For instance, if the Court had gone the other way, maybe they would have picked off Roberts and Alito in affirming the doctrinal framework.

But that said, I think it opens a GI-NORMOUS can of worms to move capital punishment to non-death situations. My hunch is this fear drove the majority's opinion. That's why I'd prefer they just come out and say -- we have the institutional authority to closely review criminal sentences under the text and original understanding of the 8th.

To take that idea one step higher, you could say that Courts in general have more power when they're interpreting constitutional restrictions (eg., habeas suspension, 8th amendment).

The other side of that coin is that courts should let congress decide the limits of its own AFFIRMATIVE power grants, such as the commerce power.

this is a lot of random crap thrown into one comment, so I can clarify anything if necessary.

[david kilmer]

Excellent post, publius. I have no legal expertise to speak of, but reading the opinion made me uneasy. The "consensus" and "consistent direction of change" stuff seemed weird enough to start with (though I understand that these ideas played into the other four cases); but when I read, "There are measures of consensus other than legislation", I threw up my hands. If you can pick whatever measures you want to use (and that seems to be what Kennedy was doing), you can make them say whatever you want.

Besides which, the "as expressed in legislative enactments" idea from Roper doesn't seem to make much sense. If legislation indicates the direction the country is going, then legislation will eventually get us there without the court getting involved.

The part of the 8th Amendment reasoning that determines whether the sentence is proportionate gives me the jibblies. It puts the court in a position where it's saying less than it wants to say. Instead of saying, "the death penalty is wrong, period", as one could do with legislation, the court can only say, "child rape isn't bad enough to merit death". Yikes. No wonder Kennedy went with the consensus stuff.

[david kilmer]

I had one other thought - one of my annoying reflections on progressive values.

I think the reason why some progressives are ambivalent about this decision is that neither outcome would really reflect their values. The principle of fairness leads me to reject the death penalty for all sorts of reasons: the likelihood of it being applied to an innocent person; the idea that the government shouldn't have the power to take people's lives; the realization that it's going to be applied disproportionately to certain segments of the population; etc.

But the principle of empathy leads me to support harsher measures toward people who rape children. As a society, we continue to become more acutely aware of the enormous damage an act like that does to a child. On the other thread, someone said (I paraphrase), "Show me a mother who would prefer her child to be dead rather than raped". Maybe such a mother doesn't exist, but I would be very surprised if the thought hadn't crossed many parents' minds, after seeing the ruin rape had made of their children's lives.

[Ben Alpers]

The opinion does seem to be a mess.

But I reiterate what I said before: state-sponsored murder is an evil, whether it is done to a child rapist, a murderer, or, IMO, Adolf Eichmann.

Reducing the frequency of state-sponsored murder--and cutting off a major pathway to the increase of state-sponsored murder--is an unalloyed good, compared to which the legal niceties of well-reasoned opinions, (largely fantastic though honorable) commitments to judicial restraint, and the like pale in comparison.

The outcome of Kennedy v. Louisiana is a very good thing. Full stop.

[Hartmut]

As for arbitrary standards: "Death penalty only in case of caused death" seems to me to be about the least ambiguous possible and therefore the most reasonable*.
Treason and espionage should imo be treated according to the same standard
As for "better dead than raped": That has a very dirty past too (from the doctrine that women have to resist rape until death or be considered consenting to the euphemism of "suffering a fate worse than death" for unmarried loss of virginity).

*for those that accept capital punishment in principle (which most of the time does not include me. My opinion concerning the likes of Chain-Eye is known so I will not violate the posting rules by repeating it)

[Brett Bellmore]

For the record, I'm not an originalist because I hate the Warren court. I despise the Warren court because I'm an originalist.

Mind you, this doesn't leave me with much love for the current Court, either...

We pay these guys enough that they can do a better job than this of rationalizing their own preferences; You don't appeal to "evolving consensus" when the evidence says the consensus is evolving in the OTHER direction.

[Adam]

The opinion is a mess, but I think that's because it relies on Coker in the first place.

The problem underlying all the earlier death penalty cases is that their rationales all follow along the lines you basically just laid out, and I don't think you have to read too far between the lines to hear the Court saying in Coker or Furman, "Well, we don't like the death penalty, but rather than flatly override the state legislatures, we're going to create all sorts of procedural burdens that impede the use of capital punishment rather than banning it outright."

And that makes some sense practically, too, since it means that the states that really want capital punishment, like Texas, have to through all these formalities -- legislatively and judicially -- to apply it; the alternative is probably a bunch of states that just keep the capital punishment statutes on the books and apply them only in high-profile cases, which would be a horrible state of affairs.

The other benefit of the procedural-fairness/national-consensus rationale is that it's politically neutral, and neither the pro- nor the anti-capital-punishment judges is willing to let a pro- or anti- death penalty statement into a published opinion. (Though it's pretty clear what Stevens and Scalia actually think about the issue.)

The problem with the Coker/Furman/Gregg rationale is that it was inevitable that some state would try to apply the procedural formula from the homicide statutes to a different crime, and I think that it's clear even from those earlier opinions that the Court was never fully committed to that logical position in the first place.

The subtext in those decisions is always the 8th Amendment. Coker doesn't mean what it says it does; it's a decision calculus that's been crafted to achieve a compromise result in a way that's intellectually plausible, rather than a rule to be extended and applied.

I agree that Kennedy is logically inconsistent with Coker and the other previous cases, but I don't think that's because the Court misapplied the precedent or misjudged national consensus or anything. Rather, it's because the Coker/Furman/Gregg framework is not internally consistent in the first place, and was probably never meant to be taken at face value. We're just seeing where the real lines in the sand are.

[Paul, Just This Guy, You Know?]

I'm no legal scholar, and I'd be delighted to see legislatures discontinue the use of the death penalty, but it seems to me that this is another step in an ongoing power grab by the court. As someone said the other day, when the court meets in private, it sits as a Constitutional convention.

[von]

Reducing the frequency of state-sponsored murder--and cutting off a major pathway to the increase of state-sponsored murder--is an unalloyed good, compared to which the legal niceties of well-reasoned opinions, (largely fantastic though honorable) commitments to judicial restraint, and the like pale in comparison.

Isn't this just an obscure way of saying that "the ends justify the means"?

That doesn't strike me as a very good way to run a country.

(Like Publius, I care a great deal about process.)

[Katherine]

I think the only sensible reading is to interpret "cruel & unusual" as meaning "cruel and excessive" rather than "cruel and uncommon", & so current 8th amendment jurisprudence is a mess; this case is no exception, but as in other recent decisions, the dissents are just as flawed.

[Sebastian]

I think the reason this case causes so much trouble is that it is a case of naked judicial activism. Kennedy only barely tries to hide the fact that he doesn't like the statute in question, therefore he gets to rule against it no matter what the Constitution really says or the rest of the country really thinks.

The problem with this case is that it reveals something about the way the Court operates that suggests that we shouldn't bother having the Court pretend to interpret the Constitution. If this is what they are really doing all the time, why should they have that power?

[publius]

well, maybe the constitution gives them that power directly. as katherine says, why couldn't unusual be construed as excessive.

after all, if you believe in judicial review as most do, then you could say that the constitutional text imposes a strong restrictions. thus, it's effectively delegated to courts the power to decide all this stuff. that view gives a lot of power to the judiciary but it's perfectly consistent with the text.

it's effectively what's happening now, but htey're trying to fool the masses about it

[liberal japonicus]

Perhaps this has been mentioned, but I just found the decision on the SCOTUSwiki, which is in turn linked to the SCOTUSblog (sorry, not going to push my luck with 3 links)

[Katherine]

(and I still don't get why they have the needed expertise to find punitive damages awards excessive but not criminal sentences.)

[Katherine]

If you're literal about the "cruel and uncommon" reading, then if 50 states tomorrow unanimously pass legislation legalizing some gruesome torture, then suddenly it doesn't violate the 8th amendment, because it's not unusual. This just plain does not make sense to me. If the popularity of a punishment determines its consstitutionality, why have the Supreme Court step in at all?

You can get around these nutty hypotheticals by saying that "cruel and unusual" is a term of art, but I think it's probably a term of art meaning "cruel and excessive."

[Sebastian]

"after all, if you believe in judicial review as most do, then you could say that the constitutional text imposes a strong restrictions. thus, it's effectively delegated to courts the power to decide all this stuff."

You're making a huge jump here:

Judicial review

??? (unclarified step)

Strong Restrictions

??? (unclarified step)

Complete Delegation of the 8th Amendment.

Since the history of the amendment includes the response to bloodthirsty judges, I think you should a little bit more skeptical about the idea that the amendment was largely about turning over discretion to the judiciary.

This is naked power from the Court. "I don't like it, therefore it must be unconstitutional".

Maybe legal realists are correct, and all Supreme Court cases are really decided like this. But the thing I've never understood about that theory is why we should then have a Court decide them if that is how it really works. If it really is about the personal political preferences of each of the judges, I can have personal political preferences from people I vote for. Why do I need that from life-appointment judges? If the counter-majoritarian 'function' of the Supreme Court isn't actually based in fidelity to the Constitution, why should it have a counter-majoritarian function at all?

[Katherine]

"I think it's cruel and excessive, therefore it violates the eighth amendment" would seem to be a pretty close parallel to "I think this is an unconstitutional restriction on speech or religion, therefore it violates the first amendment", to "I think more process is due than this, therefore it violates the 5th/14th amendment". Obviously, you're supposed to explain WHY that is in greater detail, but Justices in fact do that. So basically you're responding to a textual argument with a parade of right wing straw men about judicial activism. Quel surprise.

[Sebastian]

Have you read Kennedy before you smear Katherine? Not much textual argument there for me disagree with. Some lies about the moral consensus in this country are there though. End-justifies the means? You ok with that in torture cases?

[Bruce Baugh]

I'd take objections about judicial activism and the like more seriously if I found them likely to come from people who don't have a history of supporting the most grotesque trampling on law, tradition, common sense, and basic humanity in other fields, like diplomacy. It's the spirit of Jesus' parable of the talents - when I see someone who's been faithful to restraint when it's time to consider mass slaughter abroad, I'm much more likely to take them seriously when they want to talk to me about restraint with regard to a small category of executions at home.

But I'll be darned if I can find many originalists who aren't either gung-ho warmakers when the targets are right, overt racists, or both. This makes me suspect that originalism may not be much good in guiding the thoughts and actions of people who take human equality seriously and whose vision of government includes neither wishing to nor having an easy time of making unjustifiable war and the flagrant commission of war crimes.

[Katherine]

I called the Kennedy opinion "a mess". As are the dissents, as is basically all of recent eighth amendment jurisprudence. Your comment above didn't seem addressed to the Kennedy opinion; it seemed to be addressed to a textual argument about the 8th amendment but maybe I misinterpreted.

I love getting accused of "smearing" for accusing people's arguments. It now happens pretty much every time I comment. I hadn't for a while, & maybe I should've continued not to.

[Turbulence]

It now happens pretty much every time I comment. I hadn't for a while, & maybe I should've continued not to.

I value your insightful comments a great deal and would be sad to see you go Katherine.

[Curt Adams]

I think that judges should be able to set and overturn law even without reference to the Constitution. That's part of the common law tradition, which antedates the Constitution (considerably!) We all need to remember the Constitution is a means to the end of good governance and not an end in itself. *Sometimes* the legislature does the wrong thing, perhaps even by an overwhelming margin, and you need a judicial check. This whining about "legislating from the bench" is misplaced. I'm very glad the court legislated from the bench in Loving.

That said, the court needs a good reason to overturn legislative intent and text. An appeal to an "emerging moral consensus" is at best an appeal to authority - and as many have pointed out, it's a *bogus* appeal to authority. If Kennedy wanted to overturn the Louisiana law, he needed to give some good solid reasons, *and* some reasons that this is so important he's going to go against precedent and law.

Ultimately I think the problem arises from the overpoliticization of the bench. When the Supremes are divided along political lines, the swing voters become all-powerful, and power tends to corrupt in the Supreme Court as everywhere else. After twenty years of largely making the country be able to do whatever he want, and now two years of virtually absolute power now that O'Connor is gone, Kennedy is coming to believe that he can and should do whatever he wants. In a healthy Court the other justices would smack him down but in the current environment neither wing can afford to offend him in the slightest. We had a similar situation with the infamous "O'Connor special," those painfully complex standards that just incited more litigation. Kennedy's "specials" don't create the same problems for lower judges and the legislatures, but they are more corrosive to the moral authority of the court.

[Sebastian]

"So basically you're responding to a textual argument with a parade of right wing straw men about judicial activism. "

"I love getting accused of "smearing" for accusing people's arguments. It now happens pretty much every time I comment."

Its your words. If you don't mean them, you shouldn't say them.

[Ben Alpers]

Isn't this just an obscure way of saying that "the ends justify the means"?

That doesn't strike me as a very good way to run a country.

I'm saying something significantly more narrow, von.

These particular ends (putting further limits on state-sponsored murder) justify these particular means (sloppy legal reasoning and a possible, but by no means clear, increase in judicial power relative to the other branches of government). As I see it, the benefits of the end are enormous, the costs--especially taken in the context of the other decisions rendered by this court--of the means are relatively low.

I actually do, in general, care about process. But process doesn't always trump everything else.

[Curt Adams]

This judgment affects 2 people in Louisiana right now, IIRC. Only a few states have death penalties for child rape and it's a rare crime to start with, so few could be affected in the future. How can this decision have "enormous benefits" when it affects so few people?

[Ben Alpers]

How can this decision have "enormous benefits" when it affects so few people?

This decision makes it impossible to impose the death penalty for non-deadly offenses. That has the potential to effect large numbers of people precisely because I think the decision is poorly grounded and standards are actually getting worse. My guess is that most states would join Louisiana in this sort of law if the SCOTUS gave them a green light to do so.

But I'd actually say that saving the lives of those two people is itself an enormous benefit.

[Randy Paul]

I didn't read the decision, but did anyone address the possibility that providing for the death penalty will likely guarantee the murder of the child victim?

[Harry Simon]

For decades, the Supreme Court has rightly held that what constitutes cruel and unusual punishment under the Eighth Amendment is judged by evolving standards of decency, and the Court is the ultimate judge of those standards. Literal embrace of an originalist interpretation of the constitution on this issue produces absurd results.

By the 1700s, 222 crimes were punishable by death in Britain, including stealing, cutting down a tree, and robbing a rabbit warren. The New York Colony instituted the Duke's Laws of 1665. Under these laws, offenses such as striking one's mother or father, or denying the "true God," were punishable by death. (Randa, 1997).

While such punishments might not offend the consciences of individuals in the 17th or 18th century, that isn't and can't be the guide for interpretation of the Eighth Amendment.

I'm not offended that the Supreme Court is the ultimate arbiter of this issue, or by thr meajority's apparent increasing discomfiture with capital punishment. Decades of experience with the process of administering constitutional limits on the death penalty has cause several Justices who approved of capital punishment to reach the conclusion that it cannot be fairly administered.

In Callin v. Collins, Justice Blackmun concluded:

"From this day forward, I no longer shall tinker with the machinery of death. For more than twenty years I have endeavored—indeed, I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.1 Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved [*10]and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question—does the system accurately and consistently determine which defendants "deserve" to die?—cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, U.S. (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, U.S. (1993),and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U.S. (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution."

Sentiments like that have caused even quite conservative Justices to view capital punishment wuith increasing skepticism and closely cabin those circumstances under which it can be used. In my opinion, this is a good thing.

[washerdreyer]

Sebastian, I don't see where your argument from bloodthirsty judges gets you, except that the Court can't use its 8th Amendment powers to increase a sentence beyond a statutory or regulatory maximum.

[Sebastian]

"Sebastian, I don't see where your argument from bloodthirsty judges gets you, except that the Court can't use its 8th Amendment powers to increase a sentence beyond a statutory or regulatory maximum."

Publius forwards the argument that perhaps the 8th amendment was really intended all along to trust the idea of "cruel and unusual" to judges. I take this as a work-around for the fact that evolving standards of decency on this issue don't cut Kennedy's way.

I respond to that argument by noting that it would be rather surprising if the 8th amendment was really intended all along to allow judges be the ultimate arbiter of "cruel and unusual" as a concept when the clause was insterted largely in response to the actions of bloodthirsty judges.

[hilzoy]

I don't think it has to be a workaround. An originalist who attends to the distinction between original meaning and original application -- to use my standard example, between the meaning of a term like 'carcinogen' (something that causes cancer) and its application (what things are believed to cause cancer) will not be distracted by the list of things thought to be cruel and/or unusual in 1789. She might think: what matters is what 'cruel and unusual' means.

She might well think: cruel means something like excessively barbaric, and unusual means, well, unusual. "Excessively barbaric" obviously refers to things that we think are beyond the pale in some way. Moreover, if the authors of the amendment wanted to refer to what they thought was excessively barbaric, rather than licensing change in this area, they could just have said so. But they didn't.

She might then go on to think: ideally, legislatures will not pass laws that are excessively barbaric. But when they fail, of course judges have to say so. This is not about letting judges be the cosmic arbiter of everything; it's about following the actual text of the Constitution, which needs to be interpreted, and in this particular case to be interpreted in accordance with prevailing moral norms.

(Shorter version of this point: suppose the Constitution actually said: no punishments that are excessively barbaric. It seems obvious to me that the word 'excessively' would directly call for judging according to prevailing moral norms. Or suppose it said: no punishments that are widely understood to be cruel. In that case, if judges tried to decide what was excessively barbaric, or widely understood to be beyond the pale, or whatever, they would not be interjecting their own views; they'd be applying the Constitution, which asks them to determine what is excessive, widely understood to be cruel, etc. The people Seb seems to be arguing with think that the right interpretation makes 'cruel and unusual' analogous to these things, not that judges should disregard the Constitution in favor of their own views.)

Personally, I still think the best interpretation of 'cruel and unusual' is something quite different: no punishments that are not in the statute but rather made up by judges, and that are also excessively barbaric. That still involves reference to prevailing moral norms, of course, but it also implies that any punishment that is imposed by statute is, in virtue of that fact, not unusual. But hey: that's just me.

[Curt Adams]

This decision makes it impossible to impose the death penalty for non-deadly offenses.

Again, for what crimes? Rape in general was already nixed, even the most brutal, and that pretty much nixes it for any non-murder crime, since there's such a horror of brutal rape.

Even if every state passed a law like LA I doubt we'd see 2 people executed a year. Like I said, it's a rare crime. And most states wouldn't pass it, if only because they wouldn't want to encourage killing the victim. So where's the big effect?

The concerns with the effect of the decision are not about how it will affect other death penalty cases. The concern is how Kennedy doesn't seem to even need to put a fig leaf on imposing his own preferences on the nation.

[Curt Adams]

Sebastian, how on earth do you come up with the interpretation that the Founding Fathers objected to cruel and unusual punishments if judges imposed them but were OK with it if legislatures did? Do you really think Franklin and Jefferson would have been OK with, say, death by slow public dismemberment for interracial relations, if 50%+1 of the population approved? Do I really have to dig up all the quotes from the Federalist papers concerned with out-of-control legislatures? Sure, judges might have been the main target at the time but it's an incredible leap to say the 8th was *only* intended to affect judges or that judges aren't supposed to enforce it.

[Ben Alpers]

Again, for what crimes? Rape in general was already nixed, even the most brutal, and that pretty much nixes it for any non-murder crime, since there's such a horror of brutal rape.

Even if every state passed a law like LA I doubt we'd see 2 people executed a year. Like I said, it's a rare crime. And most states wouldn't pass it, if only because they wouldn't want to encourage killing the victim. So where's the big effect?

Given the recent attempts by our federal government to give torture the cover of law, I put absolutely nothing past our nation's lawmakers when it comes to attempting to legislate barbarism or even crimes against humanity in the name of security and justice.

[Sebastian]

"Sebastian, how on earth do you come up with the interpretation that the Founding Fathers objected to cruel and unusual punishments if judges imposed them but were OK with it if legislatures did?"

I didn't come up with that. I said that publius' idea about the intention of the 8th amendment to be to put the question firmly in the laps of judges seems deeply unlikely considering that the actual history of the 8th amendment involved curbing the excessive punishments imposed by judges.

A lot of people seem to have weird ideas about the 8th amendment which I suspect stem from the idea that legislatures always set punishments for each crime. They do NOW, but that was mostly from a push to take sentencing discretion away from judges in the 1940s-1980s. (Interestingly the history of this movement has to do with an odd mixture of people who hated overly lenient judges working together with people who hated overly punitive judges).

At the time of the 8th amendment's ratification many laws would just classify something as 'felony' or 'misdemeanor' and give the judge almost unlimited sentencing discretion within each classification. So publius' idea that the amendment was intended to give discretion to judges strikes me as wrongheaded.

[Curt Adams]

I understand your point now, Sebastian. However, it's not accurate to say the judiciary determines punishment. Rather, the way it works is that either the legislature or the appellate judiciary can nix a punishment as "cruel and unusual". Frankly, I think that's about as good an operational definition of something vague like "cruel and unusual" as we're going to get.

[jenniebee]

Isn't this really an argument against the court having agreed to hear the case in the first place? Considering the vagueness of "cruel and unusual" and the need to create a frame of reference to find an opinion beyond the court for what is cruel and unusual (historic? national? international?) it seems to me that any decision on the legality of any application of the death penalty is going to ultimately come down to a judgment call no less capricious and subjective than if the court were to be asked to decide what is and is not pornography on a case-by-case basis.

I understand the attractiveness of a process-based decision, but I don't understand how that methodology can be applied once one accepts that the relevant law is the 8th amendment (making cruel and unusual the principal test), and I don't see where the hook is to review the constitutionality of capital punishment on any other basis. The legislature does, after all, have the constitutional authority to write stupid and ineffectual laws, and there is no guaranteed protection against them.

[Gary Farber]

"What’s more, there’s a strong argument that most states thought that Coker (an earlier case banning capital punishment for adult rape) also banned child rape."

Did you perhaps mean to write "also banned capital punishment for child rape," instead?

"(sorry, not going to push my luck with 3 links)"

You can take it to four, but not five. 3 is fine.

Also, there are more sites that automatically post all SCOTUS decisions that I could possibly bother to list, but it's easy to find and bookmark any number of them that you like; here's one. Here is another.

"Its your words. If you don't mean them, you shouldn't say them."

"Smear" was your choice of word to characterize Katherine's words, Sebastian, and I'd suggest that another choice would have been better.

And trying to lay off responsibility onto Katherine for your own choice of saying she was "smear[ing]" is also perhaps not the most optimal choice.

Lastly, "[h]ave you read Kennedy before you smear Katherine?" isn't even particularly clear or coherent: who or what were you alleging she was "smear[ing]"?

Katherine: you are, and have always been, one of the most valuable contributors to ObWi in any form, both in your now-far-too-rare posts, and in your comments; I urge you to not spend unnecessary time on the inevitable petty attacks and misunderstandings, but instead to appreciate that only a handful of people who admire and respect your work, or anyone's work, ever respond, and thus the ratio of worthless responses to actual appreciation of good work is wildly disproportionate if you merely look at what's visible, which is why it makes -- says this old Usenet hand -- no sense whatever to judge response to one's work merely by what's visible.

Your observations are invaluable: I, and I know many others, only wish we could see more of them, whether here or elsewhere, and preferably both.

Please post more, not less.

[Gary Farber]

"I said that publius' idea about the intention of the 8th amendment to be to put the question firmly in the laps of judges seems deeply unlikely considering that the actual history of the 8th amendment involved curbing the excessive punishments imposed by judges."

As this is a question of fact, I'd suggest that the best way to convince any of us that you are correct would be to provide some cites to original source material on what the intent was.

Anyone's imaginings would seem to be a poor substitute for simple cites.

I assume you're familiar with these sources, and with Madison's notes, and the others mentioned; I'd suggest those as one starting place for your future cites to actual sources to support your assertions, but perhaps you can find better sources elsewhere; I'll look forward to reading your future quotes and links.

[Slartibartfast]

You can take it to four, but not five. 3 is fine.

Four thou shalt not link. Once the number three, being the third number, is reached, then, lobbest thou thy links at thy foe, who, being naughty in your sight, shall snuff it.

[liberal japonicus]

but it's easy to find and bookmark any number of them that you like; here's one. Here is another.

Yes, however (and my apologies for not mentioning this) I think that only the ScotusWiki has an oral argument recap AND an oral transcript as a pdf, which I didn't see in the other two sites you listed. It also incorporates some wiki features that I don't believe are available with findlaw, such as a watchlist. Here is from the about page

Over the coming weeks and months, we’re going to continue to expand the site. Right now, we’ve only posted pages for cases being argued in the October sitting, but that will soon expand to all the OT07 cases. We also plan for the site to be about much more than just cases. For instance, we’ve begun to archive old Supreme Court statistics so that they are easy to find, and our “Petitions to Watch” will be archived for easy viewing in one location as well. Down the line we’ll be adding discussions of major new areas that directly relate to the Court but which may be better displayed in a static format than on a blog.

The wiki is also a great way to track updates on a case-by-case basis. For more on using the "Watchlist" to be notified of case-specific updates, see the page entitled Using the Watchlist.

Again, my apologies for not pointing out the advantages, I work with wikis on a regular basis and didn't think to explain the advantages that a wiki would have over a portal database.

[liberal japonicus]

Sorry, and I meant to include a link to the about page

[Gary Hussein Farber]

"Yes, however (and my apologies for not mentioning this) I think that only the ScotusWiki has an oral argument recap AND an oral transcript as a pdf, which I didn't see in the other two sites you listed."

Ah. Well, that is interesting, and thank you for pointing that out; I didn't know that, and it's good to know. Thanks.