Between now and the November elections, we will likely hear Senator McCain describe his preferences for Supreme Court nominees who will not "legislate from the bench." I think the liberal wing of the court--including Justice Kennedy writing for the 5-4 majority--gave him a clear example of legislating from the bench in today's Kennedy v. Louisiana decision. From The New York Times:
WASHINGTON — The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled Wednesday.
The 5-to-4 decision overturned death penalty laws in Louisiana and five other states. The only two men in the country who have been sentenced to death for the crime of child rape, both in Louisiana, will receive new sentences of life without parole.The court went beyond the question in the case to rule out the death penalty for any individual crime — as opposed to “offenses against the state,” such as treason or espionage — “where the victim’s life was not taken.”
[...]
The case, Kennedy v. Louisiana, No. 07-343, was an appeal by one of the two Louisiana inmates, Patrick Kennedy. He was convicted and sentenced to death in 2003 for raping his 8-year-old stepdaughter, whose injuries were severe enough to require emergency surgery. The Louisiana Supreme Court upheld Mr. Kennedy’s conviction and rejected his challenge to the constitutionality of his sentence.
Why do I think this is "legislating from the bench?" See Justice Alito's dissent, quoted at Volokh Conspiracy:
A major theme of the Court’s opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim,” ante, at 35, and may discourage the reporting of child rape, ante, at 34–35.
These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court’s policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ to cut off the normal democratic processes,” Atkins v. Virginia, 536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), (joint opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that warning here.
Read the whole post. I expect this decision to come up with some regularity in the remainder of the campaign.
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As the saying goes, "there's
As the saying goes, "there's no such thing as judicial activism, just judges you disagree with."
I'm sorry, but it's kind of ridiculous to accuse the Court of "legislating from the bench" in this case. Neither Congress nor the state legislatures have the authority to interpret the "cruel and unusual punishment" clause; only the Court can.
By enacting a statute allowing the death penalty for child rape, the people of Louisiana essentially declared that they don't consider the death penalty for child rapists to be "cruel and unusual punishment." That would be fine if the people of Louisiana were in charge of interpreting the Constitution for everyone else. But they're not. The issue is whether the death penalty for child rapists constitutes "cruel and unusual punishment" under the Eighth Amendment. The Court has to set a floor. Allowing the states to define "cruel and unusual punishment" would be the equivalent of repealing the Cruel and Unusual Punishment Clause. You can argue that the majority's interpretation of the Eighth Amendment was wrong (i.e., it set the floor too high), but you can't argue that the majority was "legislating from the bench."
Don't get me wrong, I disagree with the majority opinion (which isn't to say that I completely agree with Alito's dissent either, as it was pretty weak). But I disagree with the majority's specific interpretation of the Eighth Amendment, not the act of interpreting the Eighth Amendment.
What is "legislating from the bench"?
Isn't it the Supreme Court's role to rule on the Constitutionality of laws passed by states? Isn't that what was done in this case?
And isn't this a case of stare decisis, where the court upheld their own precedent of the past 30+ years?
I hate child molesters as much as the next parent, but there is powerful precedent in this case.
Listen to Nina Totenberg's analysis
http://www.npr.org/templates/story/story.php?storyId=91891822
It's How You Set the Floor
My post does not say or imply that the reason this is an example of legislating from the bench is because the Court struck down the law (and foreclosed the possibility of other possible laws related to capital punishment).
The reason I give (see: "Why do I think this is legislating from the bench?") is captured by Alito's dissent; namely, that the majority is justifying its decision in part based on arguments about what is good for society and the victims of the crime. Alito refers to the majority's reasoning as "policy arguments," and these go way beyond anything related to "nor shall cruel and unusual punishments be inflicted" on the perpetrator of the crime. There may be valid Constitutional reasons to strike down the law. If so, the majority opinion should stick to them.
Call it what it is
"Legislating from the bench" is another inflammatory term (like death taxes) invented by the right to subliminally push their agenda.
Legislating from the bench implies creating new laws, and this was not the case in this decision. Not even close.
The term serves no useful purpose in an educated thoughtful debate. I respect your opinion and thought you would be above use of this term.
Religion
There is an underlying theme behind much of the Supreme Court's actions over the past few years and that is the (implicit) religious basis for conservative judge's views.
Regardless of all the baloney spewed about these justice's legal expertise the real reasons they were picked is because they are all deeply religious Catholics. The hope was that they will provide the change in balance to overturn Roe v Wade at some point in the future.
In the meantime they bring their sensibilities to other issues. Look at issues about the death penalty. Our society's attitude is internally inconsistent. Religious teachings can be found which both promote "an eye for an eye" and "turn the other cheek". Historically the Roman Catholic church as a political institution has favored the more militant approach. A good parochial school education gets this attitude inculcated into the students so that it becomes internalized and is never examined later in life.
The consequence is that terms like "cruel and unusual" are viewed through this religious lens. Of course the same can be said for much of the law laid down when the country was founded. There was a slight difference, however.
The founders were operating in the shadow of the Enlightenment philosophers and thought they were creating a structure that was based upon reason and free of the thrall of religious dogma. That's why they tried, explicitly, to keep religion out of the government and government out of religion.
The five conservative justices are untouched by the developments of the Enlightenment, one only has to read some of Scalia's statements to see this. It's not Locke, Rousseau or Kant that is guiding them, it Sister Mary Margaret.
Lest some thing I'm just Catholic bashing, that's not what I'm doing. There is a humanist tradition in the Roman Catholic church which has been concerned with helping the poor, fighting oppression by the powerful, and opposing war - it's just that those on the court aren't part of this movement. I think that the majority of practicing Catholics belong to the more humanist tradition - 60% support birth control, for example.
So, is the court "activist"? Yes, they are pushing their vision of religious-based morality and making up legal, sociological or demographic reasons for the decisions rather than acknowledge the true basis of their ideas.
This old fashioned view of religion also strongly supports social hierarchy so their decisions tend to favor the powerful both in government and business. It's the "strong father" model to use the latest psycho-babble.
When the leadership of a country becomes more reactionary than the population the results are never pleasant. At a minimum there is the rise of gross social inequality and injustice, at the maximum one can have social unrest and civil war. So far the American public has seen fit to restrict their discontent to grumbling, but if economic conditions get worse...
Either the death penalty is
Either the death penalty is cruel and unusual, or it isn't, EoC. And, being mentioned in the Constitution, it is clearly neither.
Whether it is appropriate in the case of child rapists is a matter for the legislature to determine. They're the ones who get to decide what 'evolving standards of decency' require.
According to the written Constitution, that is.
Inflamatory?
"Legislating from the bench" seems pretty low on the inflamatory speech scale. Civilty still reigns here.
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