The Kennedy v. Louisiana quandary

I wrote a long post last night about the petition for the court to rehear Kennedy v. Louisiana, but a power outage ate it and I lack time to reconstruct it. Here's the really, really abbreviated version instead. This term, the court decided that the death penalty for child rape is unconstitutional; the losing side of that decision, Louisiana, has petitioned for rehearing with the support of the United States. My prediction: don't hold your breath.

The court claims to apply a two-part standard when evaluating Eighth Amendment claims: it purports to look to the legislative landscape in search of objective indicia of a national consensus, and then applies its own independent judgment. In Coker, the court said it was swayed by the fact that almost no states imposed the death penalty for rape (let's call this the "counting heads" test) and the fact that since the court had reinstated the death penalty a couple of years earlier, although many states had reauthorized the death penalty, none had done so for rape (let's call this the "direction of change" test).

In more recent cases, the modern majority - the liberal bloc and Justice Kennedy - have focused on the latter. In Atkins and Roper, the emphasis was on the "consistency of the direction of change" - the drift of legislative enactment was towards abolition of the punishments at issue. It isn't hard to see why. In Roper, for example, the counting heads test would have forced the court to confront the reality that only eighteen States - "47% of States that permit capital punishment" as our hero put it in dissent – had adopted legislation consistent with the court's supposed national consensus. "Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus" fumed Scalia, noting that even in earlier cases using the same flawed "consensus" methodology, the court "ha[d] required overwhelming opposition to a challenged practice, generally over a long period of time." The majority breezily dismissed such concerns, saying that "[a]ny difference between this case and Atkins with respect to the pace of abolition is thus counterbalanced by the consistent direction of the change."

Yet the "direction of change" test was the first casualty in Kennedy, which has very little to say about the consistency of the direction of change - and that should not surprise us. Since Louisiana enacted the law at issue more than a decade ago, five states have joined it (slip op. at 12), several more are considering it, and none have gone the other way. The direction of change is consistent and crystal clear - so why was it ignored? That's easy. It points in the wrong direction (from the majority's perspective). And if you think that's cynicism, your burden is to explain the doctrinal incoherence: you must posit some other reason why the direction of change was decisive in Atkins and Roper yet irrelevant - to the same five judges! - in Kennedy.

With this in mind, I find the flap about the court missing a recent enactment by Congress of the death penalty for child rape deeply unrealistic. It assumes that it actually matters to the court's disposition of the case that the trend has gone one step further (or, if we're back to the counting heads test, that seven jurisdictions authorizing the death penalty for child rape rather than six). That misapprehends the nature of the game. In Kennedy, the court - in a moment of faux candor - claimed that its decisions in this area are still searching for a principle, but that's not true; they have all been decided by a very clear principle. It's just that the principle is indefensible and therefore must be disguised. The majority chooses between possible empirical tests and parses the data carefully to make it appear that the objective indicia point one way, but aren't decisive, then applies its own judgment to strike down the law at issue. This isn't exactly dishonest, because the court freely admits that the exercise of its own judgment is part of the test, but it is legerdemain none the less, because the empirical evidence is brought in to suggest that the role played by the court's own judgment is limited, brought in only at the last minute to break the "tie."

The revelation - by a milblogger, no less - that the parties, the SG, the majority and the dissenters missed Congress' enactment has left the court in an embarrassing position. This time, the fig leaf was unusually transparent; there was never any serious evidence of a national consensus against executing child rapists. What kind of "national consensus" can there be when the case is won by a five to four vote and is immediately condemned by the presumptive nominees of both major parties?

Don't anticipate rehearing, though. For one thing, five votes are needed, and who in the majority has that kind of humility? Moreover, we know that Justices Stevens, Souter and Kennedy believe that "to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question," Planned Parenthood v. Casey, 505 U.S. 833, 867 (1992); does anyone doubt that Justices Ginsburg and Breyer feel the same about a decision for which they were in the majority?

But the main reason I think that the majority will grit its teeth, endure the criticism and refuse rehearing is that if it rehears the case, the jig is up. To grant rehearing would come close to setting measurable standards for the empirical part of the test they claim to be applying -- precisely what the majority must resist to avoid revealing the naked exercise of power that really underpins recent Eighth Amendment decisions. To illustrate: If the court grants rehearing and reverses itself, and if it sticks to its claim that it's empirical evidence that counts for most, it would teach that a ten-year seven-jurisdiction drift and/or a total of seven jurisdictions accepting a given punishment counts as evidence of a national consensus. That would be a catastrophic result for the majority, because it would give states a blueprint for reinstating the very punishments the majority is determined to abolish. If seven or more states collude in enacting a given punishment, the court would presumably have to either admit that the national consensus is now pointing the other way, or make up some excuse why it doesn't count.

Even if they grant rehearing and come out the same way, they're not entirely off the hook. In Atkins and Roper alike, the counting heads test showed eighteen states apiece that authorized the death penalty for the relevant categories of offenders, although in each case it was rarely imposed. Roper placed the most weight on the "direction of change" test, concluding that because five states had changed their mind in the space of fifteen years, there was a national consensus against the death penalty for murderers who were under 18 when they committed their crimes. To grant rehearing and to come out the same way would make a public mockery of Roper, then, because in this case, even more jurisdictions (seven) changed their minds over the same number of years in this case. The court will be left to admit either (1) Roper was wrong, (2) that it rested primarily of their own judgment, or (3) that the counting heads test weighs heavily enough that any punishment rejected by 32 states violates the Eighth Amendment. The truth is one and two, but who wants to have to make such a decision in a written opinion? Far better to deny rehearing and ride it out. We shall see what happens.

Post facto:
Rehearing denied in Kennedy v. Louisiana (10/01/2008)