EDITORIAL: 'The Kennedy Court'

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On March 2, 1998, Patrick Kennedy raped his 8-year-old stepdaughter in their Louisiana home. He was tried, convicted and sentenced to death by a jury under a state law enacted three years earlier authorizing capital punishment for child rape. Louisiana is one of six states that have such laws on the books. But on June 25, the Supreme Court, in a 5-4 ruling written by Justice Anthony Kennedy, struck down the Louisiana law, calling it unconstitutional - a violation of the 8th Amendment ban on "cruel and unusual punishment."

Now it turns out that Justice Kennedy - along with the Justice Department (and in particular, the solicitor general), lawyers for both sides and apparently all of the other Supreme Court justices and their clerks - apparently missed a critical piece of federal case law that is directly relevant to the case: a 2006 federal statute that says the rape of children by military personnel could bring capital punishment. The existence of the law didn't come to light until several days after the Supreme Court handed down its opinion, when a military blog, CAAFlog (http://caaflog.blogspot), run by Marine Reservist Col. Dwight Sullivan, asked why neither side in the case even mentioned it.

Apparently everyone else was asleep at the switch. The state of Louisiana (which, along with the Justice Department, failed to mention the 2006 law in petitions filed with federal courts) now wants the high court to reconsider its ruling in the case. "The Supreme Court got this case wrong, plain and simple," said Louisiana Gov. Bobby Jindal.

Indeed, the opinion written by Justice Kennedy and the court majority in the case is breathtaking in its arrogance and condescension, and that was apparent well before Col. Sullivan's blog pointed out the colossal blunder mentioned above. We have doubts about executing someone for a crime not resulting in death, because in such cases capital punishment may create added incentive for the rapist to kill the victim in order to eliminate a witness. But that is not a question for the courts to decide; as best we can tell, the Framers of the Constitution never took a position on whether child rapists could be executed. Whether this is good public policy is a matter of states' rights - not a decision for five Supreme Court justices acting as a national superlegislature.

But the absence of a genuine constitutional argument against the Louisiana law did not pose a serious problem for Justice Kennedy and the four other justices who signed his opinion - Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens. To compensate for that inconvenience, they went about contriving a constitutional question. What is striking about the opinion is that Justice Kennedy apparently made no serious effort to ascertain whether capital punishment for child rapists is indeed "cruel and unusual punishment" barred under the 8th Amendment by the Framers, which would legitimately render it unconstitutional. Instead, he cobbled together an opinion laden with pop psychology and analysis of public opinion data in an effort to demonstrate that something called a "national consensus" has developed against executing child rapists. But even here, the court majority's legal reasoning is so tendentious that it falls apart.

The crux of Justice Kennedy's argument is that executing child rapists is unconstitutional because it offends the American people's "evolving standards of decency," as evidenced by the fact that 44 states do not have laws permiting the execution of these offenders. But as Justice Samuel Alito pointed out in his dissenting opinion, there are manifold other reasons why so few states execute child rapists - in particular the behavior of the high court itself, which had already struck down the death penalty for groups such as mentally retarded murderers and juvenile murderers. Government officials have said publicly that they are reluctant to pursue the death penalty for child rapists because of: 1) the added expense of prosecuting capital cases, which can easily drag on for decades; 2) the trauma of forcing child rape victims to testify again and again; and 3) the risk that Justice Kennedy and his colleagues will find a new pretext to invalidate the death penalty - thereby rendering all of the additional work a waste of time and money.

The number of states that do or do not have these laws on the books is irrelevant to the constitutional question of what the Framers had in mind more than two centuries ago. Judging from its decision in the Louisiana case, the 'Kennedy Court' is reluctant to burden itself with such mundane matters. As is clear from the legal debacle unearthed by Col. Sullivan's blog, the court also has another problem: keeping abreast of federal laws passed in the last two years.