Sep 27, 2008

Final Supplemental Brief for Kennedy

A few days ago, the government filed the final brief for rehearing Kennedy v. Louisiana. They note that:

Reconsideration respects democratic processes. Without rehearing, there will be no practical way for our polity to demonstrate, now or in the future, that this Court’s reading of the Eighth Amendment was incorrect. Legislation will be impossible; opponents can, in good faith, point to this Court’s June decision as evidence that proponents are acting unconstitutionally in violation of their Oath...“[w]hen asked to encroach on the legislative prerogative [the Court is] well counseled to proceed with the utmost reticence.” Furman v. Georgia, 408 U.S. 238, 431 (1972) (Powell, J., dissenting).

I think that it makes a good point. Of course, there is ample precedent for the Court to overturn enactments by legislatures (in fact, that is exactly how the Court checks congress and the president). However, this case does mark the first time that the Court, using its own independent judgment (and with scant evidence of any other reasoning, at least any convincing reasoning) has declared both a 'national consensus' on an issue exists and that that consensus supports the unconstitutionality of an applicable executable class according to the Eighth Amendment. I tend to favor the Court's deference to elected legislatures, especially when matters of law are patently unclear. "Cruel and unusual" is far too broad a term for the Court to federalize, especially when such a national consensus so clearly does not exist. The people of the United States, thankfully, are not so blindly in step with one another that we all agree on everything. This is a perfect example of a small coterie deciding that the people of a state themselves cannot, through their elected representatives, make laws that they approve of. The Court should both rehear and overturn its decision. This is the prerogative of the legislature, not the judiciary.

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