The Supreme Court extended erroneous precedent today. Here's the opinion. I'm not suggesting that a man who rapes his 8-year-old stepdaughter should die for it, but Louisiana had determined that that was the proper penalty for such a crime. 5 Supreme Court justices disagreed with this policy preference. Thus, the eighth amendment continues to mean whatever 5 justices want it to (meaning 5 justices notions of society's evolving standards of decency). Presumably our founding fathers were much less decent than are our enlightened, wholesome, 21st century selves. Why the opinion of 5 judges better reflects society's standards than a whole state's (actually 6 states') legislators is left unexplained.
According to Justice Kennedy the death penalty is disproportionate to the crime of rape. Presumably sentencing rapists to be raped (admittedly cruel and unusual in my opinion) is disproportionate as well although I cannot see the logic in it. It seems like 1:1 to me. How's that for a mathematical proof that the majority's reasoning has nothing to do with the eighth amendment. Really, it comes down to one justice's opinion these days. The eighth amendment allows only whatever Justice Kennedy can stomach.
Of the few reasons to be happy with President Bush are his appointments to the Court. While they have not been around long, so far they have remained relatively modest. The make-up of the Court remains one of the largest issues in the upcoming presidential election. Will we vote for the guy who thinks it is all well and good for judges to look to subjective judicially invented tests and their own policy preferences in deciding cases or the guy (one hopes) who will appoint judges who understand that they too are constrained by the law.
Regardless of what you think of the death penalty, sodomy, abortion or any other social issue the Court seems to think it must take sides on, the Court's jurisprudence over the last 70 years has struck a great blow to constitutional government, and in the process aggrandized the power of the Court and the federal government at the expense of the people, the states, and therefore, self government.
