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.

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.

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.

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.

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.

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.

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 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’.