As I have been waiting for the USSC to issue an opinion in Kennedy v. Louisiana, I realized I never posted any prediction about the outcome. And as a side note, the waiting game has changed with the advent of SCOTUSBlog's live blog - I now rush to the computer every decision day and wait while they announce the opinions issued that day. And so, as I have been disappointed to not hear Kennedy being announced, I have been thinking more about the outcome of the case.
I have to say I was a little surprised about the early tea leaves readings immediately following the oral argument. Whereas I had previously argued that the second argument (narrowing of the class of defendants) was being undersold prior to the argument, I felt there was no way it was going to succeed after hearing the oral argument. My opinion was in sharp contrast to that of expert court watcher Lyle Denniston who thought:
The Court appeared less interested in whether the nation’s state legislatures were embarked on a trend to imitate — or not — Louisiana; in other words, the question of whether a trend is running against, or in favor of, executing a rapist whose victim is a child. These impressions suggested that the challengers to Louisiana’s law had better success with their backup argument than with their primary claim.
After reviewing the transcript of the oral argument again, it seems like the only Justice leading the discussion on the narrowing issue was Scalia. And by the end of the argument, he makes it clear that he thinks pre-guilt-phase narrowing is sufficient. The oral argument almost reads like Scalia wanted to distract the rest of the Court by focusing on an issue he wasn't persuaded by. So, despite my pre-argument prediction that the narrowing argument could form an unusual alliance striking down the death penalty, I'm convinced that won't happen.
Instead, I think the Court will focus entirely on whether the death penalty for child rape is cruel or unusual punishment. The question is how will they handle this tricky issue. The Court, for better or worse (probably worse), seems wedded to the evolving standards of decency line of analysis (so much for my originalist turn prediction). However, there is a tough doctrinal problem if the Court doesn't overturn Coker. This group of Justices has not shown a strong affinity for overturning prior opinions, so I'm assuming Coker will stand. If Coker is good law, then the state has a really tough argument. The current method of legislative bean-counting seems to create a strong argument for death penalty limitations, but not so much for new death penalty applications. This is because the Court counts all states without the death penalty as favoring any limitation. However, those same states will count against Louisiana if current methodology is used. With only 2 persons on death row for child rape and only 5 states adopting capital child rape statutes, I think it is going to be a hard case to say there is a clear trend if the "one-way ratchet" (I don't think the ratchet is truly one-way, but that is the label people seem to be using) is applied. Most of the Court's arguments in Coker apply with equal force to the Louisiana statute. Even with the technical distinction between children and adults, the policy and constitutional arguments are too hard to separate.
However, I think the outcome will still favor the state of Louisiana. Since I'm probably going to be wrong, I might as well go all out in making my prediction. I think it will be a 5-4 opinion with Kennedy joining Roberts, Alito, Scalia, and Thomas. I'm making a totally wild guess in predicting that Alito or Roberts will author the opinion. And I think the majority will not overturn Coker. Instead, they will essentially fudge the issue such that Coker is hollow law. I'm imagining something along the lines of the way Morse v. Frederick essentially overturned Tinker without actually doing so. The majority will mock the idea of the one-way ratchet and will argue that the distinction from Coker is obvious. And at the end of the day, the decision will probably offer no guidance on what other crimes might be constitutionally subject to the death penalty if state legislatures are so inclined.
I am probably wrong in the details, but I really don't see this as being anything other than a 5-4 opinion with Kennedy as the swing vote. There are some criminal justice decisions where varying coalitions are formed, but I just don't think this is one of those cases. Anyway, the next opinion day is Monday and I'll be patiently waiting on SCOTUSblog at 10 AM Eastern time.
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