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Culture of life trumps democracy and state experimentation in Kennedy

By Douglas A. Berman

I have now read carefully both opinions in Kennedy, and can share a few jurisprudential observations and provide my summary take-away: 1.  I was surprised (and somewhat disappointed) by how categorical and "traditional" the Court's Eighth Amendment work was in Kennedy.  Rather than a nuanced outcome like we got in Baze, the majority set out a bright-line rule to eliminate any real possibility for the death penalty for non-homicide cases.  And rather than thoughtfully explore any new approaches to the Eighth Amendment in this context, we get the tired (and silly) state-counting "moral consensus" debate and the now-standard arguments about the Court's independent judgment. 2.  Though both Justice Kennedy and Justice Alito make their arguments effectively, neither puts forward any jurisprudentially provocative ideas (and the silence from all the other Justices is deafening)...continue to full post

Full post as published by Sentencing Law and Policy on June 26, 2008 (boomark / email).