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January 6, 2010

"Can Congress Overturn Kennedy v. Louisiana?"

The question in the title of this post is part of the title of this interesting new piece on SSRN by Richard Re.  The full title is "Can Congress Overturn Kennedy v. Louisiana? The Contingency of Recent Eighth Amendment Jurisprudence," and here is the abstract:

As recently illustrated by Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of “national consensus.”  While this practice has been the topic of extensive commentary and criticism, the existing debate has overlooked the most natural implication of the Court’s consensus-based argumentation – namely, the possibility that recent Eighth Amendment jurisprudence is subject to federal legislative override.  This Article argues from existing case law that Kennedy should be susceptible to democratic correction via countervailing federal legislation.  Such legislation would demonstrate that no “national consensus” supports the Court’s holding, thereby suggesting that the punishment in question does not actually violate the Eighth Amendment.

One might respond that Kennedy would have found a constitutional violation based on the Court’s “independent judgment,” regardless of whether a supportive national consensus existed.  But even assuming that is true, federal legislation could address the concerns that underlie the Court’s independent judgment analysis.  Either way, Kennedy’s contingent reasoning would permit at least some correction by the democratic branches. Exploring these possibilities allows us to better understand and justify recent Eighth Amendment jurisprudence, as well as recent substantive due process cases like Lawrence v. Texas that also look to state and federal practice as sources of constitutional law.  Ultimately, though, the most important consequence of appreciating Kennedy's democratic reversibility has more to do with the President than with the professoriate.  As a candidate for President, Barack Obama pointedly criticized Kennedy’s holding.  If this Article is correct, then the President and Congress now have an opportunity to engage the Court in a dialogue regarding the Eighth Amendment’s contemporary practical meaning.

January 6, 2010 at 09:19 AM | Permalink

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Comments

"As a candidate for President, Barack Obama pointedly criticized Kennedy’s holding."

HAHHAHAHAHA. The author actually bought into that? Wow. Obama's position on Kennedy allowed him to dodge conservative criticism without having any practical effect. It's highly unlikely a bill would arrive at Obama's desk, it would require both the House going to the GOP as well as 60 votes in the Senate.

"As a result, a new federal statute that made child rape a capital offense for civilians might render Kennedy‟s holding obsolete."

US v Morrison. /federalism

Posted by: . | Jan 6, 2010 9:34:26 AM

Are you saying that Obama was being less than truthful when he criticized Kennedy v. Louisiana?

Posted by: Bill Otis | Jan 6, 2010 10:44:56 AM

It doesn't matter if he was being truthy or not. The possibility of having to actually confront such a decision is so remote (federalism ftw) he could have deluded himself into his position by pushing aside any lingering ambivalence.

It's no different than a state politician ranting about a federal issue and vice versa. They know that (unless they run for the office) they'll never have to be the one to make the decision.

Posted by: . | Jan 6, 2010 10:54:21 AM

"It doesn't matter if he was being truthy or not."

Sure it matters. Whether the President is telling the truth about an important matter of public policy ALWAYS matters.

So was he telling the truth or not?

Posted by: Bill Otis | Jan 6, 2010 11:11:57 AM

"So was he telling the truth or not?"

You'll note he never promised an action, ie "I will veto/sign blah blah, I will appt judges that oppose blah blah." He gave his personal opinion, not a political stance vis a vis an action.

Posted by: . | Jan 6, 2010 11:23:46 AM

As a more concrete example, consider "I am opposed to the Iraq war" and "I will withdraw troops in Iraq." One is an opinion, the other is position for a specific action.

Posted by: . | Jan 6, 2010 11:26:07 AM

In case you're still confused Bill Otis, here is a nice test.

If a politician says something, and your response is "Yeah duh, so? What're you gonna do about it?" then it's an opinion

If a politician says something, and your response is "Yeah, and if you get elected, you're going to do the opposite," then it's a position advocating a specific action.

Posted by: . | Jan 6, 2010 11:29:53 AM

OK. That was one of the dumber article I have seen out of the academy in years.

"One might respond that Kennedy would have found a constitutional violation based on the Court’s “independent judgment,” regardless of whether a supportive national consensus existed. But even assuming that is true, federal legislation could address the concerns that underlie the Court’s independent judgment analysis"

What a beautiful example of double think. The court has independent judgment but it's not actually independent. Or maybe he's simply confusing independent judgment and independent *power*. "National consensus" is just the justification, the gloss, the court gives for its exercise of power. Even if Congress were to somehow abrogate that justification it would do nothing to limit the courts power. It's not the case that the court's judgments make it independent; the court judges because it's independent.

Does Richard Re honestly believe that if the SC were to decide a case and its total opinion was "because we say so" that this would make the decision moot.

Posted by: Daniel | Jan 6, 2010 1:07:38 PM

I'm sorry ".", I didn't catch the distinction, and I'm assuming Bill's lackluster intellect and practically non-existent legal experience meant he didn't either. Could you put it in simpler terms? Also, could you again explain why the actual statement from the article--"Barack Obama pointedly criticized Kennedy's holding"--is incorrect?

As to the point I did catch, I fail to see how federalism is "ftw." Why couldn't Congress pass a resolution stating its belief (and, implicitly, the national consensus) that executing people for raping an 8-year-old can be acceptable? Would that not be persuasive evidence that national consensus favors--or at least does not categorically prohibit--execution for rape of a minor?

Alternatively, Congress could punish rape of a minor by execution where the crime occurs across state lines. Again, that would, I think, provide evidence of where national consensus actually stands--even if, for all practical purposes, a prosecution under the law would be rare (since most child rapes do not occur across state lines), and invocation of the death penalty for it would be even rarer.

Posted by: Res ipsa | Jan 6, 2010 1:35:20 PM

Aren't all SCOTUS constitutional decisions "susceptible to democratic correction?"

/Article V FTW

Posted by: Texas Lawyer | Jan 6, 2010 1:50:11 PM

seems like Congress could, see generally Dred Scott.

Posted by: = | Jan 6, 2010 2:53:56 PM

Also, could you again explain why the actual statement from the article--"Barack Obama pointedly criticized Kennedy's holding"--is incorrect?

It's not. But neither is "the sky is blue."

Posted by: . | Jan 6, 2010 4:04:38 PM

Aren't all SCOTUS constitutional decisions "susceptible to democratic correction?"

Ding ding best answer. A national consenus would be shown via a constitutional amendment: 2/3 of Senate, 2/3 of House and 3/4 of the states. Not bad considering it's taking 3/5 of the Senate just to get a half-assed heath reform bill.

Posted by: . | Jan 6, 2010 4:06:25 PM

Res ipsa --

Strange but true: When I was at the USAO, we got straighter answers from drug dealers than I can get from some people on this blog.

Justice Kennedy was just making it up in Kennedy v. Louisiana, as he is prone do do once he gets on his high horse.

If you want to find out what people think of the DP for child rape, there would seem to be an easy way to go about it: ask.

The Quinipac Poll did. It found that by a not very close margin of 55-38, respondents DID favor the DP in those circumstances. You can also tell where most of the country stands by looking at the position of the Presidential candidates, both of whom condemned Kennedy and stated that the DP should be available for child rape.

Posted by: Bill Otis | Jan 6, 2010 4:14:49 PM

"It found that by a not very close margin of 55-38, respondents DID favor the DP in those circumstances."

Look Bill Otis, if the margins are "not very close," then all those in favor can easily pass a constitutional amendment. So ... still waiting.

Posted by: . | Jan 6, 2010 4:27:03 PM

Still waiting for what? A straight answer about whether Obama was telling the truth when he said he opposed the outcome in Kennedy v. Louisiana?

Was he telling the truth about his own opinion?

Yes or no.

Posted by: Bill Otis | Jan 6, 2010 4:45:27 PM

I'm lost . -- what are you waiting for? You never asked a question.

As for my waiting on my second question, why is federalism ftw? As of now, the United States DOES have a criminal laws against sexual abuse in general, and sexual abuse of a minor in particular, where it takes place in federal jurisdictions. 18 U.S.C. ss. 2241-2244. All Congress would have to do is increase the maximum penalty on already-existing offenses.

And that, if done, would be fairly good evidence of the national consensus. Kennedy plus 4 would be hard-pressed to make an evolving standards of decency argument when it's more than just a handful of states that do something. I believe that's Re's ultimate point.

Posted by: Res ipsa | Jan 6, 2010 5:00:06 PM

isn't there a big difference between saying you "disagree" with a Supreme Court decision and saying that you "disagree" with the result?

maybe I'm confused, but I don't see how someone saying that Kennedy v. Louisiana was wrongly decided means they automatically have to support having the death penalty for child rape. Obama and McCain could believe that having child rape as a capital crime is extremely ill advised as a policy matter but believe that states are perfectly free to make that decision on their own. given that neither appear to be pushing for a federal child rape statute that appears to be a realistic possibility.

Posted by: virginia | Jan 6, 2010 5:28:57 PM

Ginny --

As reported by MSNBC on June 26, 2008, Obama's position was this: "I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes," Obama said at a news conference. "I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution."

I thought Bill Clinton was the shrewdest politician with words that I would ever see, but Obama's got him beat. You can't really tell from this statement whether HE would impose the DP for a ghastly rape of a girl like the one at issue in Kennedy. On the one hand, he says that the DP is an appropriate response to "egregious crimes" and that child rape is a "heinous" crime. But then in the next sentence he seems to step away from any personal endorsement, suggesting that if "a state makes a decision" to do it, then, under narrow circumstances, that would not be unconstitutional.

Not for nothing is this guy a successful politician.

My guess -- and it's only a guess, because I'm no expert of Democratic politics -- is that in a bloody, gruesome case, he would support it (he has two young daughters), but that the bulk of his instincts are against it. He is, after all, a product of the Ivy League (Columbia and Harvard), where to be in favor of the DP for ANYTHING is roughly the equivalent of being in favor of starting WW III.

Posted by: Bill Otis | Jan 6, 2010 5:59:43 PM

Bill, I'm an Ivy League grad (Columbia to be precise) and I'm in favor of the death penalty being an option for capital murder. I think you'll find that, in most walks of life, the pro-capital punishment side tends to be less strident than the abolitionists.

Posted by: Alpino | Jan 7, 2010 2:37:36 AM

Just to clarify, when I was at Columbia, many students who I discussed the issue with, were in favor of the death penalty in certain cases (Gacy and Bundy spring to mind). However, they weren't the type of supporters who were going to hoot and holler outside a prison while an execution took place. Whereas, antis were much likelier to engage in candlelight vigils and such. In other words, I believe there was a large silent minority in favor of the death penalty at Columbia.

Posted by: Alpino | Jan 7, 2010 2:42:49 AM

Alpino --

I went Ivy League for grad school and to Stanford for law (Stanford likes to think of itself as Ivy League west, except with a better golf team). My wife went to Yale as an undergrad. She was born and reared in Manhattan, so liberalism was not exactly new to her, but she was amazed at how completely monolithic it was at Yale.

I think the reason pro-DP students tend to be quieter than abolitiionist students is two fold. First, I think conservatives on the whole tend to be less demonstrtive than liberals. Second, given the faculty's abolitionist sympathies, pro-DP students may feel that, on the whole, they're better off being quiet about it.

A few years ago I went to Yale to do a death penalty debate. The first thing I noticed when I walked into Sterling Hall was that he walls were lined with posters about Fair Play for Cuba and Women Against Male Hegemony and Keeping New Haven Green and on and on. Right then I knew there were going to be a bunch of hostile questions, which there were. But the questions were very insightful, as were the ones I got when I did the same debate last year at your alma mater.

Just as an aside, I think the people who gather outside prisons to cheer about executions have, shall we say, issues. The death penalty is just, and doing justice is a cause for satisfaction. But nothing about murder, including its punishment, is an occasion for celebrating.

Posted by: Bill Otis | Jan 7, 2010 9:51:37 AM

loved this one!

" Why couldn't Congress pass a resolution stating its belief (and, implicitly, the national consensus) that executing people for raping an 8-year-old can be acceptable? Would that not be persuasive evidence that national consensus favors--or at least does not categorically prohibit--execution for rape of a minor?"

By what stretch of the mind could ANYONE think that bunch in congress have any ideal what mainstream america wants. They have been lost in the twilight zone for a good 40-50years!

Posted by: rodsmith3510 | Jan 8, 2010 12:27:38 AM

The same is true of state and local governments, rod. But instead of merely offering sarcastic nihilism on things that you obviously know very little about (you still haven't answered Bill or my questions directly--and for obvious reasons, given that we're demonstrably correct), perhaps you can explain how the Supreme Court should measure the evolving standards of decency. Or, absent that, offer a rational response to the central argument of the article that has some basis in fact.

Posted by: Res ipsa | Jan 8, 2010 2:57:47 PM

i didn't feel it needed answering

The supreme court has ruled a number of times you can't kill someone who hasn't TAKEN A LIFE! except in a few limited areas like treason.

To keep asking them is kind of like forum shopping or just a plain nag who hopes if they WHINE enough they get the answer they want from the individual just to get them to SHUT UP!

Posted by: rodsmith3510 | Jan 9, 2010 6:34:12 PM

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