No, not that Kennedy. I'm talking Justice Anthony Kennedy, aka Ol' Swingy (as in swing vote). Today, the Supreme Court issued an opinion of the Louisiana state law that required the death penalty in cases involving child rape (not necessarily where the child was killed, just rape). The opinion was 5-4 AGAINST, effectively declaring the Louisiana law to be unconstitutional.
Kennedy was the swing vote - just like in the Guantanamo detainee decision not too long ago, granting the rights we enjoy as US citizens to enemy combatants. I won't go into that here. But my point is, I expected Justices Stephens and Breyer and the other 2 to vote they way they did - to declare the law unconstitutional. Since Kennedy was appointed back in 1988, he has been a swing voter in several cases. In my opinion, he tends (somewhat) towards a libertarian stance, rather than a strict liberal or conservative leaning. And because of that, I would have expected him to side with now minority opinion (making it the majority), simply because as a fellow libertarian (lowercase 'l') the federal government should butt out where it has no business being involved.
Here's my case - feel free to disagree. The SC decision today basically says to the states that they have no right to determine when and where the death penalty can be applied - it is a federal issue. Yes, the majority opinion (written by Kennedy, I believe) said something to the effect that the death penalty is not proportional to the crime ( child rape). And although the crime is horrendous, certainly, I tend to agree with that position. The death penalty shouldn't apply when someone did not die, regardless of the horrific nature of the crime committed.
The court, however, (or rather, the majority opinion) is using it's dislike of the law itself (in a fit of judicial 'legislating from the bench') to form it's opinion. The issue here isn't whether Louisiana 's law is a bad idea - it's whether states have the right and the power to decide the punishments for crimes as they see fit. As I read the Constitution, I see a Federal government assigned certain very explicit powers, AND limitations, and anything not assigned to the federal level is reserved for the states. Period. The states are supposed to be laboratories of democracy - each state decides it's laws and how it functions (under the umbrella of the federal govt, of course), and today the SC struck a blow against state's rights and the US Constitution. Louisiana (and the other 9 states who had similar laws) were ill-served by their Supreme Court today - score one for the Federalists.
Just some thoughts.
