Legal Ethics and Reform

Supreme Court decision Kennedy v. Louisiana made me ill

By John Stoeffler

Those who believe in a Constitution reflecting the "will of the people" and not some predilection judges have for causes that advance their personal agenda will find the recent decision in Kennedy vs. Louisiana loathsome.

Nothing, no NOTHING in recent years has so fueled my ire and added to my contempt for five justices of the United States Supreme Court than the decision handed down by them.

In Kennedy, no relation to Supreme Court Justice Anthony Kennedy, Justices Ginsberg, Stewart, Breyer, Kennedy and Souter held that the State of Louisiana had exceeded the United States Constitution's Eighth Amendment against "cruel and unusual punishment" by sentencing a man to death for the brutal rape of his 8-year-old stepdaughter.

Writing for the majority, Justice Kennedy stated that Louisiana's "death penalty is not a proportional penalty for the rape of a child." In so ruling, the Court's declaration went far beyond Louisiana's statute as it effectively nullified laws relating to child rape in five other states and thus effectively killed efforts by any state contemplating similar legislation.

What got me fired up wasn't what you might expect. While the Court's 5 to 4 decision itself was despicable at best, it was the majority's reasoning, having no constitutional rock upon which to anchor its conclusion that made me see red.

Reading the majority opinion, anyone with a smattering knowledge of the Constitution would have to concede that the decision of the majority is based upon nothing less than a liberal, activist political philosophy coupled with personal predilections. Gov. Bobby Jindal (R-La) had it right when he declared, "The opinion reads more like an out-of-control legislative debate than a constitutional analysis."

Gov. Jindal's observation of the Court's opinion goes straight to the heart of the matter. In his criticism, Jindal may have had the words of Alexander Hamilton in mind as found in Federalist No. 78. Here, Hamilton declared that no matter how repugnant they may view the will of the people, they, judges, shall not substitute their personal preference(s) to those of the people as expressed in their Constitution.

According to the Court's majority, the only constitutionally permitted reason for the government to require an individual to forfeit his or her life is that they have taken the life of another. Oh? But then, Justice Kennedy contradicts himself when he points to exceptions to this rule, such exceptions being crimes of treason and espionage. Thus the logic of the Court allows for the death penalty in the commission of treason and espionage even if a life hasn't been taken.

Why the obvious contradiction?

Because, according to the majority, crimes of treason and espionage are crimes against the State. They would have you and me ignore the fact that the victim in this case is an innocent 8-year-old child. They would also have you disregard "how much physical or psychological trauma is inflicted, (on the child) and (close our eyes to the accused party's background) no matter how heinous the perpetrator's prior criminal record may be."

Will someone please pass the barf-bag.

The Court also stated that imposing the death penalty for child rape is inconsistent with "the evolving standards of decency that mark the progress of a maturing society."

Please, show me in the Constitution of the United States where it gives to the judicial branch any authority to set or establish societal mores for this country, or for that matter any state.

The majority also conjured up what they characterized as a "national consensus" that the death penalty is never acceptable for the rape of a child. Quick, pass the bag. I think I'm going to lose it again.

In dissent, Justice Scalia was joined by Justices Alito, Thomas and Chief Justice Roberts. Scalia charged the majority's assertions regarding its discovery of a "national consensus" against the death penalty for child rapists and what it called "evolving standards of decency" as constitutionally 'unjustifiable.'

The next president will undoubtedly appoint a number of new justices to the Court. Both senators McCain and Obama have decried this decision. But the record is clear; only Sen. Obama would nominate judges to the federal judiciary with the liberal mind set of those who voted to overturn Louisiana's death penalty law for those convicted of raping a child.

John R. Stoeffler is a Ballwin resident and is president and co-founder of the Madison Forum, a constitutional think tank dedicated to upholding the principles of the U.S. Constitution and the Declaration of Independence.


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