I have been down in Chicago, attending a conference on empirical legal research at Northwestern University Law School. For me, it's a review of statistical concepts that I have understood conceptually, but, on which, have been really weak on the math. I'm learning how to use software that does the math for me, although I'll still need to work with a statistician. More to come.
While I was gone the Supreme Court decided Louisiana v. Kennedy, holding that the death penalty is unconstitutional for the rape of a child. As I have blogged before, I categorically oppose the death penalty on what are, essentially, religious grounds. So, were I a legislator, I would not vote for a law providing for the death penalty for child rapists.
But finding such a law to be unconstitutional is another matter. Death for the rape of a child would almost certainly not have been regarded as cruel and unusual at the time of its adoption, but Justice Kennedy argues, we must discern evolving standards of decency in applying it today.
Fair enough, but what does that mean? One possibility would be to limit application of the 8th amendment to punishments that are clearly contrary to some observable national consensus. Imagine a renegade red state that imposes death for sodomy or a blue state that imposes it for exceeding your allocated carbon usage. On this view, the Eighth Amendment wouldn't prohibit much, but maybe that's implicit in its nature - it prohibits only things that are cruel and unusual. By definition, those punishments ought to be rare.
Another view - and this seems to be the one adopted by the majority - is to say that the Eighth permits the Court to prohibit punishments that strike it as overly punitive.
The majority does argue that death for child rapists violates a national consensus, relying upon the facts that only five states have enacted such a penalty and that the defendant here is the first such offender that anyone has tried to execute. But, it seems to me, there is a difference between noting that a particular policy choice is made by few states and, as would seem to be the proper question here, concluding that this choice would shock the conscience of those who have not adopted it. As Jim Lindgren points out, there may well be majority public support for death for child rapists. That both Obama and McCain found it necessary to denounce the decision further suggests this to be the case.
Ultimately, the majority's position is that it doesn't matter anyway. The Court must, Justice Kennedy makes clear, bring its own judgment to bear.
And this brings us back to the whole business of "activist v. restraint" and the proper role of the the judiciary. How does the Court go about exercising this judgment? Where does it find the authority for whatever principle that judgment will rely upon? We know its not the original understanding of what the eighth amendment prohibits. It apparently need not be an actual national consensus that a particular penalty is cruel and unusual. On this view, the Eighth Amendment is a warrant for the Court to substitute its own relatively unfettered judgement for that of the legislature.
People like me regard this as problematic. While I support the idea of judicial review (not everybody does) and the Constitution certainly enacts restrictions on legislative majorities, there should be some discernable standard - found outside a judge's own sense of how the world should be - that governs the application of these restrictions. To say that a cruel and unusual punishment can be anything that a majority of the Court thinks goes too far is not really rooted in any external standard.