You might have heard that the lethal injection protocol decision, Baze, was issued today. As you would expect, the place to go for coverage of the case is Sentencing Law & Policy. Since a major Eighth Amendment decision was issued on the same day as the Kennedy argument, one might be inclined to think that the Baze opinion might have a genuine effect on the outcome in Kennedy. However, nothing I've seen so far shows any real substantial connection between the two. I haven't had a chance to wade through the nearly 100-page decision which lacks a controlling opinion, so I'm just relying on law blogosphere coverage so far.
With that being said, Berman raises two interesting points from Baze that might have relevance. If we think of Baze as an embodiment of death penalty federalism, then that would favor the state of Louisiana in Kennedy. While federalist concerns are not doctrinally relevant to an Eighth Amendment analysis, it can certainly be argued that such concerns enter into a Justice's thinking about a case. If there really is a capital punishment federalism wind blowing, then experimentation in regards to which crimes are death eligible might just be left to the states.
Berman also raises the possibility that the confluence of the Baze opinion with the Kennedy argument might drag the death penalty to the front of the political scene (for at least a day). I'm not so sure that such an outcome is likely and I'm pretty sure it wouldn't have a long-lasting effect. However, like Berman, I'm at least excited by the chance that major politicians will have to engage sentencing, death penalty, and sex crime issues for a day.
Related Posts: Kennedy v. Louisiana Resource Page