Alito seems to ahve (that's tropical-fruit-speak for "have") a good response to Kennedy's "consensus" argument.

I think Alito's dissent is extremely well-done. And I agree with him that it's utterly unfair to fault the states for not enacting more capital child rape statutes when everyone's reading for years has been that the SCOTUS would strike it down. And now that's born out, in part because the states actually listened to SCOTUS.

Joseph Heller would be proud.

That Coker Catch-22 is truly astounding. I wonder if J. Kennedy wrote it with a straight face. How can he say states should not have relied on Coker as invalidating the death penalty for child rapists, then later in the same opinion cite Coker for the proposition that "As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim�s life was not taken."

The mind boggles.

(Oh, and for the record, I wasn't all that thrilled with making these crimes death-eligible, but I do think the reasoning in this case is a crock. The "Kennedy Rule" lives!)

[This message was edited by Shannon Edmonds on 06-25-08 at .]

Oh, and for good measure, Kennedy basically takes judicial notice of the alleged "fact" that child victims are unreliable.

Get ready to see that passage regurgitated in every appeal of every crime involving a child victim.

Evolving Nonsense

By the Editors
National Review Online

In his opinion Wednesday for a five-justice majority in Kennedy v. Louisiana, Justice Anthony Kennedy ruled that the Eighth Amendment's prohibition of "cruel and unusual punishments" forbids imposition of the death penalty for the rape of a child. Or, rather, he ruled that the Court's modern rewriting of the Eighth Amendment as a license for the Court to impose its "independent judgment" of "the evolving standards of decency that mark the progress of a maturing society" yields that result. If any further evidence were needed that the Supreme Court's death-penalty decisions have become entirely unmoored from the actual Eighth Amendment -- as well as from the good sense of the American people -- Kennedy's opinion provides it.

[snip]

Reasonable people can and will disagree on whether and when the death penalty should be available as a punishment for serious crimes. We deserve a Supreme Court that lets change evolve, in whatever direction, through the legislative processes, not justices who employ "evolving standards" as a one-way ratchet against the death penalty.

For the full editorial, read HERE.

Amen ta that brutha'

Where did the "evolving standards of decency" come from?

I'm not sure where it started, but I know it was in at least three of the concurrences to Furman. (Actually, I think it was two concurrences and a dissent, IIRC. Brennan, Marshall, and...Burger?)

I'm just wondering if it can be traced back to the Warren court.

quote:

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Originally posted by R.J. MacReady:
I'm just wondering if it can be traced back to the Warren court.

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Good guess. I did a quick search, and the earliest I can find it cropping up was 1958, in Trop v. Dulles, 356 US 86, 100. Plurality decision, written by CJ Warren.

quote:

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Originally posted by AndreaW:
Good guess.

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Even a blind squirrel . . .

For the Prosecution: Opinion Usurps Democratic Process

By John Bradley
Texas Lawyer
June 30, 2008


In a 5-4 opinion in Kennedy v. Louisiana, the U.S. Supreme Court amended the Eighth Amendment to prevent state legislatures from setting the proper punishment range for kidnapping, torturing and raping little children. In short, five justices decided for more than 300 million U.S. citizens that executing a sex offender is never appropriate. I say "amended," because those justices fundamentally altered how punishment laws are decided by imposing their personal opinions rather than a principled analysis of the language of the Constitution.


Rest of Editorial.

[Texas Lawyer also published an opposing point of view by David Botsford, an Austin criminal defense attorney. David has appeared several times at the TDCAA Annual Conference and debated with me over current cases. He is a good egg. For David's editorial, click here.]

Here's a thoughtful take on the subject

It's an interesting article. It makes some very insightful points.

Not to be too post-modern, but does the author recognize that his post-political pitch is actually a plain-old-political pitch?

(This a note about the article's author, not the poster's author.)

quote:

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Originally posted by R.J. MacReady:


Not to be too post-modern, but does the author recognize that his post-political pitch is actually a plain-old-political pitch?

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Post modern? I'm sorry, I must be at the wrong tdcaa forum.

quote:

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Where did the "evolving standards of decency" come from?

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I don't know where they came from, but I'm certain they are not in the Constitution.

They probably came from the same place penumbras originated...in the mind of someone choosing to ignore the language of the Constitution to fit a political whim.

Seems that the United States Supreme Court has suddenly reversed its opinion regarding the death penalty for child rapists. But, coverage of this event has been hard to come by. The liberal media has suppressed any stories, hoping no one would learn about this momentous event.

If you want to learn about this change of heart, go to the Onion web site. Then, in the search box, type "death penalty". Check out the video from the first story that comes up on the list. I think you will see why no one is passing on this amazing news.

P.S. Please check your office policy before watching streaming video that may contain words previously used by George Carlin, may God bless his soul.

quote:

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Originally posted by JB:
George Carlin, may God bless his soul.

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He would've laughed at that.

http://www.nytimes.com/2008/07/02/washington/02scotus.html?_r=1&th&emc=th&oref=slogin

Sorry I don't know how to make my links fancy like some of you . . . interesting story, though.