The Washington Post picks up on a point made by conservative court-watchers regarding the recent U.S. Supreme Court case finding capital punishment for child rapists to be unconstitutional: the Supreme Court incorrectly stated that there was no federal statute providing for capital punishment for such a crime. In fact, two years ago Congress included in the Uniform Code of Military Justice child rape as a crime for which the death penalty may apply. As the Post noted:

The majority determined that capital punishment for child rape was unconstitutional, in part because a national consensus had formed against it. As evidence, the court noted that “37 jurisdictions — 36 States plus the Federal Government — have the death penalty. [But] only six of those jurisdictions authorize the death penalty for rape of a child.” for a re-hearing on the case.

The Post called for a rehearing for the case.

Why is this a big deal and the re-hearing a good idea? First, any opportunity which affords the chance to puncture the notion of judicial infallibility, especially with regard to the justices’ grand pronouncements about “evolving standards” of morality and justice is worth seizing. As I’ve argued before, the Court and Kennedy specifically often ignore –or in this case make up — facts to justify imposing the Court’s own views of morality and justice, cloaking them as society’s evolving views. A hearing to examine the fallacy of the Court’s pronouncement on the absence of a federal statute, not mention the method by which it dismissed other state statutes and evidence of societal consensus on the issue, would be an edifying experience.

Second, a perfectly awful decision bolstered by a perfectly frothy opinion should be the subject of more discussion on the broader issue of rule by the judiciary. It is healthy to re-examine and attempt to re-engage the public in the debate over the proper role of the judiciary, the extent to which democratic policy decisions are subverted by judges relying on their own personal whims, and the divergence between two schools of jurisprudence ( Roberts/Scalia/Alito/Thomas vs. the rest). And yes, in a presidential election year, with numerous potential Supreme Court appointees in the offing for the winner, it is especially important to have this debate.

del.icio.us

Google

Facebook

This entry was posted on Saturday, July 5th, 2008 at 11:42 AM and is filed under Contentions. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.