Examining what the Chief and Justice Ginsburg might do in Kennedy

Sherry Colb has this notable new essay at FindLaw, titled "Kennedy v. Louisiana and the Lessons of a Supreme Court Oral Argument."  Here is how it starts and ends:

On April 16, the U.S. Supreme Court heard argument in Kennedy v. Louisiana, a case challenging the constitutional validity of a death sentence imposed for the rape of a child. In this column, I will take up some of the intriguing ideas that emerged from the questions that various Justices posed to the attorneys arguing before them. In particular, Justice Ruth Bader Ginsburg and Chief Justice John Roberts, in their efforts to understand the force and content of earlier Court precedents, revealed important clues to their respective views on a variety of issues....

[T]he Justices' inquiries in Kennedy do suggest a greater likelihood of the Court's upholding the death penalty for child rape than one might have predicted prior to arguments.

More specifically, Justice Ginsburg appeared open to drawing a line between execution for the rape of an adult woman and execution for the rape of a child, a line that she defended, quite poorly, on feminist grounds. She also seemed poised to announce a new approach to interpreting precedents about the death penalty — one that would discount the votes of those in the majority who categorically consider the penalty unconstitutional.  Justice Scalia, too, apparently agreed that categorical anti-death-penalty votes should be ignored.

Finally, Chief Justice Roberts, by contrast to Justice Ginsburg, appeared to view the potential execution of rapists as evidencing moral progress toward an enlightened view of the harm of rape. In defending the State of Kentucky's right to execute child-rapists, moreover, he took the surprising position that courts have no reliable metric by which to determine which crimes are serious enough to call for execution.  If the Chief Justice can assemble four additional votes for this view (and he surely can count on Justices Scalia's and Thomas's), then we might see a future in which a growing category of crimes are subject to the ultimate penalty.  In a case involving the brutal rape of an eight-year-old by her stepfather, this could represent the most surprising development of all.

Some recent related posts:

• Hoping (foolishly?) that the Chief uses Kennedy to transform Eighth Amendment jurisprudence
• Missouri pols all calling for child rape to be a capital offense
• Will the FLDS case impact perceptions of child rape and sex offenders?
• The latest views of the Kennedy capital child rape case
• Focused analysis of distraction of Kennedy case
• Looking at capital child rape's constitutionality through the Atkins/Roper lens
• Resource page on Kennedy and the opaqueness of child rape statistics