Kennedy vs. the Rest of Us
Andrew McCarthy did some fact checking on Justice Anthony Kennedy, and the Justice came up short.
Kennedy’s opinion in the 5-4 ruling banning the death penalty for child rape relied on the unsupported notion that a national consensus exists against such punishment. On that basis, the court overturned the death sentence of “a grown man whose sexual assault of his eight-year-old step-daughter was so savage a forensic expert described the resulting wounds (which required emergency surgery to save the child’s life) as the worst he had ever witnessed.”
We noted the “evolving standards” fiction in “Defining Decency Down.”
Kennedy found evidence for the consensus based on the fact that 36 states have the death penalty but it applies to child rape in only 6 states. In this faulty logic, 83% of states with the death penalty agree with Kennedy. One wonders of course how a consensus can be presumed to exist against something passed by the democratically elected legislature of a state and signed into law by its duly elected governor.
Kennedy found additional evidence of a national consensus in recent congressional action, writing:
As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse…. [A]n offender is death eligible only when the sexual abuse or exploitation results in the victim’s death.
But McCarthy shows that Congress provided precisely the opposite in 1996, adding the death penalty for child rape that does not result in death to the Uniform Code of Military Justice. He shows Kennedy’s supposed national consensus to be a transparent fraud intended to justify the whims of a slim court majority.
The vaporous slogan posing as a standard is the spoon full of sugar that helps the Court’s enlightened medicine go down. The handiwork that results is not a reflection of our evolved values; it is five lawyers dragging the benighted masses kicking and screaming toward its Utopia – where brutalized eight-year-old girls, like murdered innocents and terrorized cities, are not flesh-and-blood but the props by which we measure how “maturely” we indulge their tormentors.
The case, ironically styled Kennedy v. Louisiana, should really be viewed as a prime example of Justice Kennedy versus the democratic process in all 50 states.
