A Bunch of New Kennedy Posts

I haven't had time to post about all the great recent posts concerning Louisiana v. Kennedy.  Sentencing Law & Policy has three interesting posts:

Show me support for capital child rape laws (concerning the MO. amicus brief)
Is the editorial board of the Denver Post omniscient or just obtuse? (the title is self-explanatory)
Looking at capital child rape's constitutionality through the Atkins/Roper lens

This last link leads to a really interesting post at CrimProf.  Here is an excerpt from that post:

And that brings me to my point:  Respondent could have argued (but didn't) that regardless of the best reading of Coker as of 1977, the Eighth Amendment has changed as society has evolved.  That is precisely what the Court suggested in Atkins  and Roper.  The Court in those cases did not overrule its prior precedents holding the death penalty constitutionally acceptable for the mentally retarded and juveniles, respectively.  It appeared to hold instead that the meaning of the Eighth Amendment had itself changed between 1989 and 2002-2005.  At least one argument the State could have made in Kennedy is that a similar change has occurred here, albeit in the opposite direction, refuting the notion that the "evolving standards of decency" test is a ratchet.

Time will tell whether any of these arguments appeal to the Members of the Court most likely to vote to uphold the Louisiana statute.  It is certainly unlikely that Justices Scalia and Thomas would sign onto any opinion holding that the meaning of the Eighth Amendment has actually changed in the last 31 years.  By the same token, it will be interesting to see what the more moderate Justices can do to get around what they set themselves up for in Atkins and Roper.  Perhaps the most likely outcome will be a four Justice plurality consisting of the Chief Justice and Justices Scalia, Thomas, and Alito upholding the statute but rejecting (or ignoring) the Atkins/Roper methodology, with Justice Kennedy writing a separate concurrence in the judgment adapting that methodology to uphold the statute here.

Also at CrimProf is coverage of the MO. amicus brief.

Lastly, several people have sent me this link to the Death Penalty Information Center's resource page on the case.