Justice Kennedy’s majority in Kennedy v. Louisiana is an interesting, albeit frustrating one. He sets out to splatter every argument he can against the wall in the hopes that at least a few will stick. Whether or not he succeeds is up to the reader and more importantly, future generations of Supreme Court Justices who will no doubt be asked to answer this question and similar ones in the future.
His first splattering:
The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.
Okay. I’m not totally convince yet, but I get the feeling Justice Kennedy will try again.