Commentary Magazine



Yes, it’s only Ralph Nader. But his comments are utterly unacceptable. The only question is why the mainstream media treat him like a serious person.

On a truly serious issue, the Supreme Court finds that the government cannot impose the death penalty for raping a child. (Excellent analysis is here, here and here.) The central problem with the opinion, as is the case with so much constitutional jurisprudence, is that an impossibly open-ended and subjective “legal” analysis ( in this case, “evolving standards of decency”) really mask the Court’s efforts to superimpose its policy views on those of elected officials. There is no “objective” criteria by which the Court would seem to accept (e.g. polling, number of statutes allowing capital punishment for rapists of children) so it boils down to: What does Justice Kennedy think about this one.

McCain issued a statement expressing his disagreement with the decision. Barack Obama says he doesn’t like it either. But the methodology, if not the result, is one utterly in keeping with Obama’s judicial philosophy. (Really.) On this list of helpful things for McCain to do he should add: Explain to voters why Obama’s judges will impose social policy at odds with their values.