A Summary of the Petitioner's Argument

Here is my summary of the key arguments on my first read through of the transcript of the Petitioner's argument:

Interestingly, Scalia starts the questioning of the Petitioner on the second, narrowing issue. This gives some credence to my idea that a coalition of judges may strike down the Louisiana statute as applied to Kennedy because of the second issue raised by the Petitioner.  However, the statute may survive in its current form (now that it has been amended to allow for narrowing post-guilt phase) and the other five states would be able to distinguish their statutes from the Louisiana law. Souter follows Scalia's lead and also turned first to the narrowing issue.

Ginsburg raises an argument that Coker may not be controlling law because there was no clear majority opinion. Scalia capitalizes on this argument to make a couple of jokes. This could give some indication of how the Court could uphold the decision in Coker while still finding for the state of Louisiana. Ginsburg's role in Coker shouldn't be forgotten - she authored an amicus brief for the defendant in that case.

Scalia and Roberts then move to the heart of the Eighth Amendment evolving standards argument - is six states enough? They both seem to think that the direction of change is all that matters, not the number of states (after Atkins and Roper). Roberts also raises a point which I think is difficult for the Petitioner to answer - if the USSC intervenes on a case by case basis, a trend never has a chance to develop. Ginsburg pushes the point that several states have joined an amicus in favor of Louisiana (another tough issue for the petitioner). The Petitioner takes the strong position that if the USSC upheld the Louisiana statute, the trend toward capital child rape statutes would not continue.  I'm not sure I agree with the Petitioner on that point, but strategically, I understand why he is making it.

Roberts asks about treason. That is the one non-homicide case where the death penalty might apply that is hard for the Petitioner to explain away. The Petitioner says that a capital treason statute is constitutional because treason is worse than murder.

Ginsburg actually refers to her old amicus brief in Coker and makes the argument that I have made that treating rape as worse or equivalent to murder stems from a Victorian era notion of a woman's chastity.  I'd be happy to see this argument make it somewhere into the Court's opinions.  Ginsburg failed to get the Court to adopt the argument from her amicus brief, but now she has a little more power in that regard.

Related Posts:
Kennedy v. Louisiana Resource Page
Texas's Argument
Louisiana's Argument
The Petitioner's Rebuttal 

Comments

[James N. Markels]

Didn't Justice Ginsburg also expressly distinguish the Victorian-era rationale on rape from the issues inherent in child rape? If she thinks that child rape is distinguishable, then I wouldn't be expecting it in any of the opinions.

[Corey Yung]

James N. Markels,

I assume you are referring to this portion of Ginsburg's question:
"I mean, the notion was that making rape equivalent to murder was no kindness to women, because it said once you've been raped, you're spoiled. That's not -- there's no parallel with child rape. So I think that what was going on under the surface in Coker is quite different."

I think you are right to say Ginsburg views the two situations differently (a view which I don't agree with - I think a lot of treatment of women carries over to children). However, I think the argument might still fit into a Ginsburg opinion. It depends on what happens in this case. If the majority upholds the Louisiana statute because "rape is a crime worse than death," then I think Ginsburg, in a dissent or concurrence, could certainly bring up the arguments she made in her amicus brief in Coker. Similarly, even if the court doesn't go that far, it might for a footnote-worthy discussion of why, historically, sex crimes have been considered worse than murder. Either way, I think it would be a worthy discussion that the Court refused to have in the original Coker case.

Best,

Corey Rayburn Yung