Evolving Nonsense :: NRO

In his opinion Wednesday for a five-justice majority in Kennedy v. Louisiana, Justice Anthony Kennedy ruled that the Eighth Amendment’s prohibition of “cruel and unusual punishments” forbids imposition of the death penalty for the rape of a child. Or, rather, he ruled that the Court’s modern rewriting of the Eighth Amendment as a license for the Court to impose its “independent judgment” of “the evolving standards of decency that mark the progress of a maturing society” yields that result. If any further evidence were needed that the Supreme Court’s death-penalty decisions have become entirely unmoored from the actual Eighth Amendment — as well as from the good sense of the American people — Kennedy’s opinion provides it.

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