At Wednesday’s oral argument in Kennedy v. Louisiana, No. 07-343, Justices Scalia and Breyer had an amusing exchange.
Justice Breyer fretted that the Court would quickly find itself adjudging the “moral categorization of crime” if it reversed itself after decades of confining capital punishment to homicide crimes.
Justice Scalia dryly retorted, “[j]ust the way they used to.”
Justice Breyer quipped, “[p]erhaps 200 years ago, that’s true.”
In a more substantive exchange, Chief Roberts seemed to distinguish two recent cases banning capital punishment for the mentally retarded and for juveniles, as “qualitatively different” from the distinction at issue in Kennedy between child rape and murder, because the former cases focus on the “culpability of the offender” as opposed to the nature of the offense.
Also of interest, Chief Roberts downplayed the importance of both the judicial branch’s recent capital punishment cases and any social consensus that may be trending away from the death penalty, stating the trend that matters instead is that “more and more states are passing statutes imposing the death penalty in situations that do not result in death.”
Also of note, outgoing Texas Solicitor General and proud papa Ted Cruz argued (the day after the birth of his daughter) that the death penalty should be extended to particularly heinous child-rape crimes because these crimes have gotten worse. “We’re seeing crimes that 20, 30, 40 years ago, people wouldn’t imagine.” Describing Patrick Kennedy as a “300 pound man who violently raped an 8-year-old girl,” Cruz said he was “exquisitely culpable.”
Thx to the WSJ Law Blog
