Supreme Court refuses to rehear death penalty case for child rape

After ruling last year that no national consensus existed for putting child rapists to death, critics noted that the Supreme Court had missed a glaring example in the military regulations.  That prompted the state of Louisiana to file for a rehearing, and given that the main argument in the 5-4 decision overturning the law was based on Anthony Kennedy’s faulty judgment, that seemed appropriate — to everyone but Anthony Kennedy and his four associates.  The court rejected the appeal, but not without some sniping:

Without comment, Justices Clarence Thomas and Samuel A. Alito Jr. said they would have granted the rehearing. Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr., said he respected the decision to deny a rehearing, but sharply criticized the majority.

“The views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case,” Scalia said. “The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down” to its own judgment that the death penalty is too severe a punishment for a crime that does not result in death.

Scalia continued: “Of course, the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read ‘no criminal penalty shall be imposed which the Supreme Court deems unacceptable.’ “

I oppose the death penalty anyway, but this is spectacularly dishonest reasoning by the court’s majority.  Kennedy clearly invoked the supposed lack of a “national consensus” as his reasoning for rejecting the law.  Congress passed the military regulation for the death penalty on child rape, showing that a national consensus indeed exists, and that the nation as a whole does not feel that the Louisiana law was extreme, cruel, or unusual.

This new ruling exposes the last as nothing more than judicial activism, applying policy preferences rather than the law.   The “no national consensus” was a giveaway in the first place.  Lousiana doesn’t need to obey a “national consensus” when it promulgates its laws; it only has to obey the Constitution of the United States and its own constitution, and the Supreme Court only has jurisdiction over the former.  The Eighth Amendment speaks to the penalties, not their application — and either they need to declare the death penalty itself unconstitutional or leave it to the states to decide its application.

Instead, they tried making a weak argument about national consensus, got caught, and now won’t acknowledge what they explicitly stated in their original reasoning.  It’s a great argument for ensuring that we elect a President who will appoint jurists that apply the law rather than manipulate it — badly — for their own policy preferences.