Bidish Sarma has written a short article at the Yale Journal Pocket Part about the legacy of the Court's decision in Kennedy v. Louisiana. Sarma was involved in the litigation, so the article comes from an interesting perspective. I think the article is a valuable contribution to defining what Kennedy will stand for in future cases. On that point, this is what Sarma had to say:
The decision’s lasting legacy shall emerge from the Court’s “independent judgment” analysis. The majority stated that it struck down Louisiana’s law because of “both [the] consensus and our own independent judgment.” In his statement respecting denial of rehearing, Justice Scalia contended that the majority opinion turned only on the independent judgment of the Court; “there is no reason to believe that absence of a national consensus would provoke second thoughts.”
The Court’s response to the State’s petition may support Scalia’s conclusion. The petition squarely asked whether the Court’s independent judgment could serve as a stand-alone justification. The majority tweaked its opinion with a footnote, but did not address this question. This silence bolsters Scalia’s claim, despite the majority’s insistence that the national consensus “is entitled to great weight.”
Anti-death penalty advocates are now surely encouraged to pressure the Court to declare inhumane laws unconstitutional without the typical inquiry into the number of state legislatures that have abandoned the practice. The opportunity to appeal to the Court’s independent judgment provides great hope for those seeking to defeat the death penalty. Indeed, as Justice Stevens’ concurring opinion in Baze v. Rees foreshadows, the moment a plurality of the Court will find the arbitrary application of the death penalty cruel and unusual—without tallying state laws—is now foreseeable.
I am not sure I agree with Sarma on this point. I think the "independent judgment" analysis is really the same as the subjective component applied in prior cases. I think Sarma may be giving too much credence to Scalia's characterization of the majority opinion. To my mind, this decision is a logical extension of the objective analysis that has been used in every case since Coker.
To be fair, though, I am sure Sarma would have a lot to say in response to my argument. While I'm generally a fan of the online law review format, Yale's article limitations sometimes limit the author's ability to make sophisticated legal argument. The word cap, I believe, is 1,500 words. By the time an author sets up the argument, it is difficult to fully analyze the legal issues involved. So, my criticism should be taken with a grain of salt as I have the luxury of no length limitations, no need to explain the background, and no editors breathing down my neck. So, I recommend checking out Sarma's piece for yourself.
Sentencing Law & Policy is also covering the article here.