Quote Of The Day

“A major theme of the Court’s opinion is that permitting the death penalty in child-rape cases is not in the best interests of the victims of these crimes and society at large. In this vein, the Court suggests that it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty. Ante, at 32. The Court also argues that “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim,” ante, at 35, and may discourage the reporting of child rape, ante, at 34–35.
These policy arguments, whatever their merits, are simply not pertinent to the question whether the death penalty is “cruel and unusual” punishment. The Eighth Amendment protects the right of an accused. It does not authorize this Court to strike down federal or state criminal laws on the ground that they are not in the best interests of crime victims or the broader society. The Court’s policy arguments concern matters that legislators should—and presumably do—take into account in deciding whether to enact a capital child-rape statute, but these arguments are irrelevant to the question that is before us in this case. Our cases have cautioned against using “ ‘the aegis of the Cruel and Unusual Punishment Clause’ to cut off the normal democratic processes,” Atkins v. Virginia, 536 U. S. 304, 323 (2002) (Rehnquist, C. J., dissenting), in turn quoting Gregg v. Georgia, 428 U. S. 153, 176 (1976), (joint opinion of Stewart, Powell, and STEVENS, JJ.), but the Court forgets that warning here.” –Supreme Court Justice Samuel Alito, dissenting in the Supreme Courts decision to ban the death penalty in child rape cases

11 Responses to “Quote Of The Day”


  • I’m not exactly sure what Alito is trying to say… The courts opinion in that case had nothing to do with the crime Atkins committed, or whether or not the Death Penalty in general constituted “cruel and unusual punishment”. The Court was asked to decide whether or not having the death penalty applied as punishment to a defendant who was mentally retarded would be a violation of the 8th Amendment… which it clearly was, despite the dissenting opinions of Rehnquist, Scalia, and Thomas.

  • Exactly! Alito is saying that is precisely what the court needed to address: whether it was cruel and unusual punishment for the crime. Everything else is irrelevant.

    In other words, in answering that question, it is irrelevant whether the law is, “in the best interests of the victims of these crimes and society at large”. Or whether “it is more painful for child-rape victims to testify when the prosecution is seeking the death penalty”, or whether, “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim”. These are not questions for the courts to decide, these are questions for legislators. The courts role in this case was to decide the narrow question of whether the death penalty for child rape constitutes “cruel and unusual” punishment. Nothing more.

    Why do you think the court focused on these irrelevant factors in deciding this case? I can only speculate, but I believe that a big part of the reason is that they cannot make their case otherwise. Its difficult to argue that the constitution makes the death penalty cruel and unusual punishment for child rape when the founders used it for much wider circumstances. A popular new strategy though, and one Kennedy himself appealed to in this particular case, is the appeal to “evolving standards of morality” and a “a national consensus”. But even this is weak, since “65% of Americans favored the death penalty for child molesters“…so whose “national consensus” is Kennedy referring to? Probably just his and his elite friends.

    Here is a quick lesson in politics Joel: A fundamental difference between “liberal” justices and “conservative” justices is in the question of “Who should decide moral issues?”. Conservative justices believe that moral issues are outside of the realm of the courts. If the constitution is silent on a particular moral issue, the people should be able to decide for themselves on that particular moral question. So whether we are talking about abortion, gay marriage, euthanasia, or the death penalty, the American people themselves should decide on its limits and applicability. As Supreme Court Justice Antonin Scalia is famous for saying, “If you are against abortion, convince your fellow citizens of your position and vote on it”.

    Liberal justices, on the other hand, unable to convince the general public of their views, have decided to force their views on the general public through the courts (and yet conservatives are seen as the intolerant ones?). Although they package their defense in democratic terms like “national consensus” and “evolving standards of morality”, the truth is it is precisely the general publics views that they are against. Whether it is abortion, gay marriage, and yes, the death penalty, these liberal justices are usurping the rights of the citizens and forcing their moral views on the rest of us. The only “national consensus” they can point to is their own elite views. The general public is usually far against them.

    For the record, I am against the death penalty for child rape. Not because I believe it is “cruel and unusual” punishment, but for the practical reasons mentioned above. However, I am strongly against the Supreme Court having the authority to decide such questions. The practical arguments are for legislators to decide not the Supreme Court. And setting the precedent where nine justices decide moral issues for the country is a very dangerous precedent, as Scalia once said, “Anyone who thinks the country’s most prominent lawyers reflect the views of the people needs a reality check.”

  • HP,

    I don’t think I would characterize liberal justices as those who “have decided to force their views on the general public through the courts” on the same day that the conservative justices (rightly or wrongly) ganged together to overturn the will of the people in the District of Columbia.

    The sharp difference you believe exists between liberal and conservative judicial philosophies doesn’t seem all that obvious to me.

    Just sayin’.

  • Remember LaurenceB, my distinction: moral issues. There are things that the constitution does speak on…and gun rights is certainly one of them. Whether the constitution allows guns or gun bans is a legal question that should be decided by the Supreme Court. The same is true with Guantanamo, wars, habeas corpus, and other legal matters. In those particular cases, the views of the public are irrelevant.

    However, issues involving abortion, gay marriage, euthanasia, and the death penalty are not legal questions – they are moral questions. Do you, for example, consider the unborn child a person or not? Or do you consider gay unions equivalent to heterosexual unions? How you answer these fundamental moral questions predicts, with high correlation, how you will rule in various cases. In other words, these questions are not decided by appealing to laws, they are decided by appealing to morals. And because we live in a religiously plural society, unless the constitution specifically forbids something, moral issues should be decided by the people, not the courts. Thats all I am saying.

  • I think you’re somewhat arbitrarily deciding what is a “moral” issue. As best I can tell, you’ve simply reiterated the latest social conservative hot-button issues, and given them the special status of “not-reviewable-by-the-courts”. But why is gay marriage a “moral” issue, yet (I assume you agree) inter-racial marriage is not? Or, to put an even finer point on it, isn’t it true that inter-racial marriage would have been a “moral” issue to conservatives in the past?

  • It probably would have. I know it was considered a moral issue by progressives (why modern day progressives have taken up a name with such historical racial connotations is another topic for another day) of the past.

    Just as you could cite Supreme Court rulings we can all agree with, I could also do the opposite. After all, it was the Supreme Court which enhanced the rights of slaveowners in the Dred Scott case and it was elected officials — the President and Congress — who abolished slavery. Which again, is why I prefer moral issues to be decided by the people, not nine unelected judges.

    Scalia further clarifies the difference between courts 50+ years ago, and the new direction liberal justices are taking us down:

    “Now, in asserting that originalism used to be orthodoxy, I do not mean to imply that judges did not distort the Constitution now and then, of course they did. We had willful judges then, and we will have willful judges until the end of time. But the difference is that prior to the last 50 years or so, prior to the advent of the “Living Constitution,” judges did their distortions the good old fashioned way, the honest way — they lied about it. They said the Constitution means such and such, when it never meant such and such.

    It’s a big difference that you now no longer have to lie about it, because we are in the era of the evolving Constitution. And the judge can simply say, “Oh yes, the Constitution didn’t used to mean that, but it does now.” We are in the age in which not only judges, not only lawyers, but even school children have come to learn the Constitution changes. I have grammar school students come into the Court now and then, and they recite very proudly what they have been taught: “The Constitution is a living document.” You know, it morphs”.

    Oh, one other example about how not just the judges and scholars believed in originalism, but even the American people. Consider the 19th Amendment, which is the amendment that gave women the vote. It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.” But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise — not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old fashioned way and adopted an amendment”.

    His full speech, a highly recommended read, is here.

  • Just to be clear – you, I and Scalia are in agreement that the role of the Supreme Court is properly to review the constitutionality of legislation and nothing further. In fact, I’m willing to bet that it would not be hard to find words from Ginsburg similar to Scalia’s above. No one I know of actually espouses openly the philosophy that the Supreme Court should “legislate from the bench”.

    My point of contention is that, in practice, it doesn’t seem to me that Scalia is in any appreciable way more pure on this count than is Ginsburg (for example). Although he obviously enjoys talking about it more often than most of the justices.

  • Take the moral issues of our day, whether it be abortion, gay marriage, or the death penalty. On all of these issues, it has been the courts who have gone against the will of the people…yet you cant deny that these are moral issues more than legal issues.

    If the conservative justices were as aggressive as the liberal ones, we would have the opposite of what we have today. We would have a Supreme Court law banning abortion, banning gay marriage, and always permitting the death penalty. Instead, we have the opposite.

    Just to give one example, as a pro-lifer I am not asking that the Supreme Court ban abortions. I am asking that it allow the question to be decided democratically. The same with all moral issues. Yet it seems to me that it has been primarily liberals (with, granted, the exception of euthanasia) who are the ones enshrining their personal moral beliefs into law. Who cares if I am pro-life or the majority of the people are, liberals believe that abortion should be available on demand…and they are making sure to enforce that belief through the highest court in the land. Its as if the conservative justices had done the opposite, and banned all abortions throughout the country. Would you then say, under those circumstances, that liberal and conservative justices both claim the moral high ground? That neither side is, in practice, enforcing their moral beliefs more than the other?

    Btw, here is a recent book by the moral liberal justice of the Supreme Court: Active Liberty.

  • HP- what’s got me confused is that none of the details of your quote are accurate… you’re saying it was from a dissent by Justice Alito, but this case was decided way back in 2002, almost four years before Alito even sat on the Supreme Court. He wasn’t involved in the case at all. Unless he wrote an article of something in a law review, I’m not sure where that could have come from.

    And you say that Alito was saying that the court should not have focused on the irrelvant details, when in fact the court DID NOT focus on anything but the question before it!

    The majority opinion, written by Justice Stevens, only discusses the background of the case as what it is, background. That’s the customary way all opinions from the court are written.

    Here is the actual synopsis from the opinion the Court handed down:

    “Defendant was convicted, in the Circuit Court, York County, N. Prentis Smiley, Jr., J., of capital murder and was sentenced to death. The Virginia Supreme Court affirmed the conviction, 257 Va. 160, 510 S.E.2d 445, and sentence, 260 Va. 375, 534 S.E.2d 312. Certiorari was granted. The Supreme Court, Justice Stevens, held that executions of mentally retarded criminals were “cruel and unusual punishments” prohibited by Eighth Amendment, abrogating Penry v. Lynaugh, 109 S.Ct. 2934.

    Reversed and remanded.

    Chief Justice Rehnquist dissented and filed opinion in which Justices Scalia and Thomas joined.

    Justice Scalia dissented and filed opinion in which Chief Justice Rehnquist and Justice Thomas joined.

    ——————-

    and then you go on to say:

    “For the record, I am against the death penalty for child rape. Not because I believe it is “cruel and unusual” punishment, but for the practical reasons mentioned above. However, I am strongly against the Supreme Court having the authority to decide such questions.”

    Again, the question the court was decided had NOTHING to do with whether or not child rapist should be given the death penalty… it was was whether or not the 8th amendment would be violated if a man who was mentally retarded were to be put to death!

    All the facts surrounding your quote are inaccurate. The Supreme Court never “banned the death penalty in child rape cases” at least not in
    Atkins v. Virginia.

  • Joel,

    We are talking past each other. You are referring to an older case (mental retardation and the death penalty)…I am referring to the case that was just decided on Wednesday (child rape and the death penalty) in Kennedy v. Louisiana.

    Here is more on the case. It gives a link to the majority opinion and the dissent by Alito. Read through the opinion and you will see references to “Evolving standards of decency” and so forth.

  • well shit, now it makes a lot more sense… The Alito quote uses the citation to Atkins so I didn’t realize what I was reading was actually from Kennedy v Louisiana… with all the big supreme court opinions handed down in the past couple of weeks I didn’t pay as much attention to that case as I should have.

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