Confirmed: Anthony Kennedy doesn’t know what he’s talking about
posted at 1:20 pm on July 2, 2008 by Allahpundit
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Wrong on the law, and as it turns out, wrong on the facts. Although in fairness, everyone else involved in the case was, too.
When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either…
A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.
Anyone in the federal government — or anywhere else, for that matter — who knew about these developments did not tell the court. Not one of the 10 briefs filed in the case, Kennedy v. Louisiana, mentioned it. The Office of the Solicitor General, which represents the federal government in the Supreme Court, did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana’s death penalty for child rape was constitutional.
Via Patterico, here’s the post at CAAFlog that caught the entire justice system napping. Read down into the Times piece and you’ll find an amusing bit near the end about whether this means a petition asking the Court to reconsider its decision is in the offing. Answer: Of course not. Remember, the point of the “evolving standards of decency” test for cruel and unusual punishment is that it’s almost entirely arbitrary. The Court likes it because it lets them do whatever they want to do, so long as they can patch together a few bits and pieces of “evidence” demonstrating a “national consensus.” Does a law passed just two years ago by our national legislature have something to tell us, perhaps, about which way the national consensus is evolving? Not really. Why? Because it just doesn’t, that’s why. The cleverest way to expose what a sham this sort of conclusion-to-premise reasoning is would be for a few red states to pass laws extending the death penalty to child rape notwithstanding the Court’s decision, then argue on appeal when they’re sued that this constitutes fresh new evidence that standards of decency are still “evolving.” How many states do you think it would take before Kennedy et al. decided that a new national consensus had been reached? 49, or all 50?
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Yay!
Weebork on July 2, 2008 at 1:21 PM
I don’t think 50 would be enough.
Vizzini on July 2, 2008 at 1:23 PM
.
Since when did the supreme court decide it was their duty to not follow the constitution, but to judge based on ‘national consensus?’
Think_b4_speaking on July 2, 2008 at 1:26 PM
When history records the events leading up to our political dissolution, things like this will be included. How is this any different than past states’ rights issues?
JiangxiDad on July 2, 2008 at 1:27 PM
The truth to a liberal is not whether the facts are true or not, but whether he/she want them to be true. Just because a person’s perception of reality is delusional doesn’t mean it is not true to that individual. Obamb1 in ‘08.
volsense on July 2, 2008 at 1:28 PM
It’ll take all of OBambi’s 57 states.
O-Dub on July 2, 2008 at 1:29 PM
Just more confirmation of the obvious: left-leaning justices rule on emotion, not by reasoning. They then go out and build, a so called, legal rationale for their feelings. Why else would they need to seek the inclusion of foreign law in their opinions? Just like we learned in junior high English: When writing a paper, find the evidence to back up your thesis. In other words, select and choose your facts to fit the idea. This is what they do, rather than looking to the Constitution for their facts.
Weebork on July 2, 2008 at 1:29 PM
Why are we paying any attention to their unconstitutional ‘rulings’ at all?
Because we’re a nation of gulping fish, that’s why
LimeyGeek on July 2, 2008 at 1:29 PM
So (forgive my HS ed on this), the Supremes can make a huge omission in their ruling on the law and there is no remedy or balance, save some State by State enactment of a new law?
Starting to lean toward that Andy Jackson argument everyone was throwing about when this story first broke.
Rigga-fratta-ragga-rigga
Limerick on July 2, 2008 at 1:35 PM
Vote Obama and put a few more Ruth Buzzi Ginsburg’s on the court. Then we’ll have that delicious change everyone wants.
JammieWearingFool on July 2, 2008 at 1:37 PM
If France passed a child rape death penalty, it wouldn’t matter if 0 states did. That would be enough for our elites.
pedestrian on July 2, 2008 at 1:37 PM
Hey but your leaving out Alaska and Hawaii
Mojack420 on July 2, 2008 at 1:41 PM
I suppose a differently composed court could choose to hear a case on this topic again :)
JiangxiDad on July 2, 2008 at 1:42 PM
Hmmm…. seems to me that the “National Consensus” in a Democracy would be decided by the People, or at least their elected officials, not 9 appointed Judges.
This actualy strikes to the heart of judicial activism…
The death penalty is Constitutional, but we will tell you when you may apply it.
Romeo13 on July 2, 2008 at 1:43 PM
First, we kill all the judges.
jukin on July 2, 2008 at 1:45 PM
Kennedy being the one who freaking flipped and flopped on this issue should be put in a Detention center with Sexual Offenders for a week. Then see what he says after he gets out. I bet he would be whistling a new tune.
Sorry… I believe in Death to anyone who is a Sexual Offender. You can’t change these people… they can’t change themselves. Nor will any types of drugs do anything to these repulsive people.
upinak on July 2, 2008 at 1:47 PM
I would rather be drawn and quartered then to deal with that type of change.
upinak on July 2, 2008 at 1:49 PM
Congratulations to the BLOGosphere to expose Kennedy’s crew of researchers as WEAK. This makes their rulings a bit more suspect at least.
Although I favor capital punishment, I’m very much on the fence for it’s application to rapists.
originalpechanga on July 2, 2008 at 1:53 PM
Zactly. Since the court (well, some of the justices on the court) are bent on a “national consensus” and/or draw decisions by referencing foreign laws, how would a sexual predator be handled in an Islamic nation?
Dr.Cwac.Cwac on July 2, 2008 at 1:53 PM
Perhaps there are too many laws if the supreme court can’t keep track of them all.
lorien1973 on July 2, 2008 at 1:56 PM
I’d be happy with putting them on a fence too. A spiky fence. With splinters.
lorien1973 on July 2, 2008 at 1:57 PM
The dream of my lifetime would be a movement that took apart the federal government a piece at a time using the 10th amendment.
JAW on July 2, 2008 at 1:58 PM
Well, I have a friend in Turkey who told me that they found a man sexually molesting (and I won’t go into detail) children. They (as in the village) killed him… brutally.
He never mentioned if the villagers were Muslim or Christian, but they sure as heck didn’t waste time about court and how to handle the situation.
upinak on July 2, 2008 at 1:59 PM
Those who sit on a Fence, make me wonder when they are going to fall on it.
upinak on July 2, 2008 at 2:00 PM
Too bad Supreme Court justices can’t be sued for malpractice.
rockmom on July 2, 2008 at 2:03 PM
Judge Anthony Kennedy = National Disaster
IMPEACH - IMPEACH - IMPEACH
byteshredder on July 2, 2008 at 2:03 PM
You’d have to get the states involved and they don’t want to lose their money.
lorien1973 on July 2, 2008 at 2:03 PM
As I agree… just a shot would get rid of them.
upinak on July 2, 2008 at 2:06 PM
So, the case thats going forward of the 19 year old guy who had consensual sex with his 15 year old girlfreind, and got 4 years for it…. you’d kill him?
Or the recent case where there was a threesome going on, and in mid act she said “stop” and he didn’t stop for a few seconds, and so got convicted of rape… is worth the DEATH SENTENCE?
CHILD rape? OK, I aggree… but once puberty hits and hormones flow, it could end up killing people who just acted as GOD and Nature made us (talking consensual sex here). You need to fix some of the laws first.
Romeo13 on July 2, 2008 at 2:08 PM
The Supreme Court violated the constitution on this one, no doubt.
I have a real problem making the penalty for rape and murder the same. What incentive does a rapist have for letting his victim (witness) live if the penalty for rape and murder are identical?
Casteration and a life sentance in an Islamic prison might be good.
The Rock on July 2, 2008 at 2:13 PM
Ok Romeo, you and I can agree there. When it comes to teenagers it gets tricky.
But where do you stop the non-sense? Do you ask WTF the adult (or supposed adult) was doing or thinking? Do you make it an action when the adult is a certain age, say no more then 24? What do you do with the teenager who is out of control.
When it comes to that, you and I agree. That is a weird grey area that you need to sit down and hear both sides.
But I am talking extreme sexual offenders. Child rapiests, True serial rapiests (which there are quite a lot more then people know about), etc.
upinak on July 2, 2008 at 2:15 PM
For him I would guess 72 and shh don’t let him know there are only 50. :-)
JeffinSac on July 2, 2008 at 2:16 PM
do you think he cares if he’s wrong or right?
all he cares about is the POWER
and as long as we allow the supreme court to interpret the constitution then we do not live in a democracy, rather a judicial oligarchy.
right4life on July 2, 2008 at 2:19 PM
right, as most sexual predators. They want the power.
Makes you kind of wonder who is jockeying for who.
upinak on July 2, 2008 at 2:27 PM
I think we’re reaching a national consensus that the entire Federal government, very much including the so-called “Supreme” Court, is a scam. But I’m sure Kennedy will be the last person to become aware of that. These people are like the French aristocracy circa 1790.
flenser on July 2, 2008 at 2:31 PM
One could argue that dis-incentive effect of the death penalty on child rape would be so great that less of it would occur to begin with. I’m not sure which way I would go, but that is why we have a legislature, to deal with specific facts. The SCOTUS stepped in and acted as an unelected, appointed for life uber-legislature and prevents all consideration of any facts.
pedestrian on July 2, 2008 at 2:33 PM
You have to wonder what the New York Times thought it was doing in running this story. Perhaps it is trying to embarrass Kennedy into retiring so President Obama can replace him? The conventional wisdom is that Stevens and Ginsburg will be the next likely retirements, so Obama would not have a chance to change the direction of the Court. But if Kennedy retires, he would. Just in time for the Court to uphold Chicago’s gun ban too.
rockmom on July 2, 2008 at 2:36 PM
I love it, if only we had a few more Jindal’s out there willing to try it. Gotta love LA for passing its castration law as soon as SCOTUS stuck down the death penalty.
infidel2 on July 2, 2008 at 2:48 PM
It’s a one-way ratchet, baby!! Does man evolve into an ape?
Attila (Pillage Idiot) on July 2, 2008 at 2:53 PM
Is that chemical castration or the “real deal” castration?
What do they do to the women? Giving them a chemical castration type drug isn’t as effective. And the fact that that castration doesn’t work. It is proven if a sexual offender is still “castrated”, they will use other methods.
upinak on July 2, 2008 at 2:53 PM
upinak
The news reports said chemical castration.
I am aware of the data on recidivism even when castration is performed. However, it is still a bit of an “up yours” to the SCOTUS.
infidel2 on July 2, 2008 at 2:59 PM
Allowing the Supreme Court to decide what the constitution means on the basis of “evolving standards of decency” (a totally subjective standard), is to simply abdicate power to our ruling oligarchy.
American democracy is dead, long live the
KingJustices of the Supreme Court!Fatal on July 2, 2008 at 3:01 PM
Sad, very very Sad.
upinak on July 2, 2008 at 3:05 PM
I have not had my afternoon coffee yet so I’m not sure how to take your comment. Thoughts of sexual child abuse, recidivism and the limitations on punishment are sad. If you are making some other point, it flew right over my head.
infidel2 on July 2, 2008 at 3:08 PM
Sorry, but the premise is wrong here.
Just-us Kennedy does not understand or react to “reason” and “logic”!
landlines on July 2, 2008 at 3:14 PM
It isn’t a bad comment. They use chemical castration up here on all sexual offenders. Only problem is that these offenders (usually the ones who are determined) find a way around the chemical compounds.
It is getting to the point where we are opening a jail JUST for sexual offenders… non violent to violent.
You can’t reprogram these people. They have shown is doesn’t work. So what do and can you do concerning people like this? I can only think of one thing.. but what can you do.
upinak on July 2, 2008 at 3:20 PM
How important was the election of W in 2000 and 2004? 5/4 decision on 2nd Amendment and some kind of intelligence on the court! God help us if the Messiah wins and nominates 3 liberals to the court.
O.T….where did they get that picture of the Gorecal in the wetoday ad on this page? Did they take that back when he was in high school, because he looks pretty slim in that and now he has his own zip code.
flytier on July 2, 2008 at 3:27 PM
That’s why I think Allah’s suggestion is so brilliant. If the judges are going to use that test . . . pass more laws in more states and prove them wrong. Recidivism is such a problem that state and federal rules of evidence have carved out an exception to allow evidence of those prior acts at trial.
infidel2 on July 2, 2008 at 3:28 PM
Why has no one brought up the fact that the dissenting Justices did not notice this Federal statute either? I mean, I’m certainly no Kennedy fan. There is only one legitimate method of interpreting the Constitution, and thus far only two of our Supremes endorse it. That legitimate interpretation is originalism. Were this case to be decided on those grounds, there would be no discussion of the so called “evolving standards of decency,” nor would there be discussion of Justices subjectively trying to divine when a sufficient “national consensus” exists to prove that standards have evolved. If this case were decided by the proper method, whether Congress has passed or repealed the death penalty for child rape would have absolutely nothing to do with whether said punishment violates the 8th Amendment.
To argue with the court’s decision on the basis of its own assumptions will get us nowhere because the Court’s present assumption is that the Constitution is a “living document” whose meaning is supposed to change. That is a devastating assumption to Constitutional government.
So let’s do away with all this discussion about “national consensuses” and start disagreeing with the decision on the only legitimate grounds possible: that the Court’s decision is not in accordance with the original objective meaning of the 8th Amendment.
medguy on July 2, 2008 at 3:28 PM
Gotta watch what happens. The 2nd Ammendment suit and this is just the beginning.
upinak on July 2, 2008 at 3:32 PM
50 would be irrelevent. Like Pauline Kael, Justice Kennedy simply doesn’t know anyone who thinks this would be a good idea.
Jaibones on July 2, 2008 at 3:34 PM
Not enough. It would have to be at least 57.
Dusty on July 2, 2008 at 3:37 PM
“The
ladyJustice doth protest too much, methinks.”Wade on July 2, 2008 at 4:04 PM
All 9 Justices should be forced to re-assess their recent work, primarily for mistakenly ruling in the B v B habeas corpus decision (even the “dissenters“) because the consideration itself was based on an Unconstitutional expansion of their legal realm into an area of war powers where they have no jurisdiction (declaring, in essence, that we are NOT at war).
The four “dissenters” should have boycotted participating in an Unconstitutional decision by the Court and opposed the illegitimate nature of the ruling itself, if they had really understood what they were doing.
The incompetence and over-reaching by this Court is getting dangerous for national security.
While it is nice to know that they think we are not a war, they should try flying in a regular airline sometime and discover that we act on a war footing to save another 9/11 de facto act of terrorist “invasion”.
profitsbeard on July 2, 2008 at 6:18 PM