Obama, McCain, and Today’s Rape Decision

We won’t waste much time explaining why today’s 5-4 Supreme Court decision prohibiting the death penalty for rape – including the aggravated rape of an 8-year-old at issue in this case – is a classic example of judicial activism. Justice Kennedy’s resort to lofty but vacuous language in the majority opinion is enough to demonstrate that even Kennedy knew he was playing moralist and policy maker rather than objective interpreter of the Constitution. For example, in today’s aptly named Kennedy v. Louisiana, Justice Kennedy opined that “

“Evolving standards of decency must embrace and express respect for the dignity of the person … When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”

John McCain immediately denounced the decision, but Sen. Obama has so far been quiet. Now, we express no opinion on whether allowing the death penalty for rape is good policy, but we have a very definite opinion on whether judges should serve as the nation’s self-appointed moral arbiters. Thus, we are, to say the least, concerned by Obama’s belief that difficult cases

“can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy. … [I]n those difficult cases, the critical ingredient is supplied by what is in the judge's heart.”

If Sen. Obama’s conception of “empathy” for criminal defendants includes leniency for child rapists, then Americans will not be happy with the judges he appoints if elected president. On the other hand, if Obama believes that Justice Kennedy went too far today in following his heart rather then the text or original understanding of the Sixth amendment – banning “cruel and unusual punishments” – then today’s decision is the perfect opportunity for him to say so.

More generally, Sen. Obama complains that the Supreme Court has become too conservative and promises to appoint justices that share his heart-based judicial philosophy. That leads to an obvious question for the senator:

If a Court that grants habeas corpus rights to enemy combatants for the first time in history, and places more importance on elite opinion than the considered judgment of Louisianans about how to best protect their children, is too conservative, then what precisely do you hope a more liberal Supreme Court under President Obama would do?

Update (June 25): At a press conference late today, Sen. Obama commented on the Kennedy v. Louisiana decision in reaction to a reporter’s question:

“[I]f a state makes a decision that under narrow, limited, well-defined circumstances, the death penalty is at least potentially applicable, that that does not violate our constitution. Now, I think had the Supreme Court said we want to constrain the ability of the states to do this to make sure that it’s done in a careful and appropriate way, that would have been one thing. But it basically had a blanket prohibition and I disagreed with that decision.”