It must have been a tough morning for Jeff Fisher. There he was, sitting at counsel table, silvery mane blowing in the breeze, poised to argue against the state of Louisiana's efforts to extend the death penalty to include nonhomicide rapists. Fisher, it seemed, has the better of the argument. The national consensus has recently been to limit rather than expand the death penalty; no one has been executed for rape since 1964; and of the just four other states that allow executions for child rape, Louisiana alone permits the death penalty for first-time offenders. Since these trends and consensus measurements are all part of the test for "cruel and unusual" punishment barred by the Eighth Amendment, one might have thought today's argument was heading toward contracting the use of the death penalty yet again, or at least not expanding it.
But as the lawyers sit around waiting to begin argument, shuffling their notes and fiddling with their pens, Chief Justice John Roberts says he will be announcing from the bench the court's opinion in Baze v. Rees, the big case from earlier this term testing the constitutionality of Kentucky's lethal-injection protocol—the same protocol used in all but one of the 38 death-penalty states.
The opinion Roberts reads offers up a rousing 7-2 endorsement of lethal injection. And suddenly, the shifting breezes of death-penalty opinion have shifted yet again. True, two of the seven justices who voted to uphold lethal injection this morning did so unhappily—Justice John Paul Stevens went so far as to dismiss the death penalty as "the pointless and needless extinction of life with only negligible social or public returns." But to the extent Baze was supposed to be a sort of test drive for doing away with capital punishment altogether, this morning it seems to have been driven off a cliff.
Happy birthday, pope.
All of which brings us back to today's argument, which begins directly after Roberts finishes reading Baze. Patrick Kennedy was convicted for the rape of his 8-year-old stepdaughter, and the state of Louisiana wants him executed for it. Fisher, Kennedy's lawyer, gamely opens with the observation that Louisiana's effort to "reintroduce" the death penalty for rapists violates the "long-standing national consensus against it." It also offends a line of cases that require states to very narrowly define the class of offenders eligible for the death penalty. Justice Antonin Scalia interrupts him to ask how one might further narrow a class of "child rapists" and whether any rape of a child under 12 could fairly be described as not "particularly heinous."
Fisher lays claim to a 1977 case, Coker v. Georgia, in which the high court prohibited capital punishment for the rape of an "adult" (the victim was 16). Coker has been interpreted as barring capital punishment for all rape. But Justice Ruth Bader Ginsburg stops Fisher to say she doesn't read the opinion in Coker to mean that "in any and all circumstances, rape that leaves the victim alive cannot be punished by the death penalty." Fisher says if you count the two justices in Coker who opposed the death penalty under every circumstance, there were, in fact, seven votes for that proposition.
"That's a strange way of making a majority, isn't it?" asks Scalia, doubtless practicing for the upcoming Passover Seder and its exercise in ritual strange counting. Scalia says you can't count the two justices who oppose all capital punishment as opposing capital punishment for rapists. Fisher replies, "I'm not aware of any wrinkle in this court's jurisprudence that says that if a justice is too far out of the mainstream, then their vote is discounted."
Scalia shoots back that he's just not counting those two justices in that majority and that, "if that wrinkle isn't there, we should iron it in pretty quickly." Oh, good. In a case about counting broad, unquantifiable national trends in public opinion regarding the death penalty, we can't even manage to count the votes of nine justices from 1977.
Fisher says that if you look at the pair of recent cases that banned capital punishment for mentally retarded offenders (in 2002) and juvenile offenders (in 2005), it's clear the social consensus is trending away from the death penalty. Then, Roberts jumps in to argue that the "evolving standards of decency" test should not be a one-way ratchet. Does this trend "only work one way?" he asks. "How are you ever supposed to get consensus moving in the opposite direction? … Do 20 states have to get together and do it at the same time?"
Scalia says this high bar against reversing the prevailing trend would put the court in the position of "prohibiting the people from changing their mind." And Roberts says the clear trend that matters is not the one Fisher points to but rather that "more and more states are passing statutes imposing the death penalty in situations that do not result in death." Scalia almost chortles. "Did you ever hear the expression 'hoist by your own petard?' The trend here is clearly in the direction of permitting more and more … capital punishment for this crime!"
Roberts continues in this vein: The cases declining to allow capital punishment for minors or the mentally retarded, he says, are "qualitatively different" from the distinction here between child rape and murder, because they focus on the "culpability of the offender" as opposed to the nature of the offense. And Kennedy adds that "even the countries of Europe which have joined the European Convention on human rights" permit the death penalty for treason. He says that on the continent, "You can slaughter your fellow citizens, but if you offend the state, you can be put to death." Then, Scalia asks Fisher if he thinks "treason is worse than child rape." Fisher replies that all the professional sex-assault groups and social workers have lined up against making child rape a capital crime.