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supreme court dispatches: Oral argument from the court.

The Capital GangThe Supreme Court jump-starts the machinery of death.

By Dahlia Lithwick
Posted Wednesday, April 16, 2008, at 6:53 PM ET

(Continued from page 1)

Justice Samuel Alito quotes a line from Coker opining that "life is over for the victim of the murderer. For the rape victim, life may not be nearly so happy as it was." He asks, incredulously, is that "something that would be written today?" Ginsburg adds that the attitudes toward rape that animated Coker—that women were the property of their husbands or fathers and were "spoiled" after a rape—have "no parallel with child rape." There was a lot of race and gender bias under the surface of the Coker case that isn't immediately present in this one.

Juliet L. Clark is an assistant district attorney from Louisiana, and she opens with the most graphic description of a sex crime I have heard at the court. It is so awful that Justice Stevens finally stops to ask whether the victim's injuries were permanent.

Justice Stephen Breyer observes that he can imagine many such "horrible" circumstances. But, he cautions, "I am not a moralist. I am a judge." He worries that if the court reverses itself after decades of confining capital punishment to homicide, the court will rapidly find itself in the business of creating some highly complex "moral categorization of crime."

"Just the way they used to," grins Scalia.

"Perhaps 200 years ago, that's true," retorts Breyer.

Clark gets involved in a long discussion with Justice David Souter about whether the class of child rapists is sufficiently narrow. Stevens asks her what she thinks of a brief from the British law lords suggesting, in effect, that evolving standards of decency can only evolve away from cruel punishment, and that you can't really "change gears and go in the other direction." Clark says the "turn-around" over child rape is based on a "unique understanding of how this crime gravely, seriously affects children."

Finally, Ted Cruz, Texas' solicitor general, has 10 minutes to show that Louisiana is right, and the court's recent trend away from expanding the death penalty is, in fact, over. He opens forcefully with the claim that "few evolving standards of decency are more pronounced than the growing understanding in modern society of the unique and irreparable harm caused by violent child rape." He urges that Coker dealt with adult rape, expressly leaving open the question of child victims. He adds that part of the reason states now want to penalize child rape with execution is that today, "we're seeing crimes that 20, 30, 40 years ago, people wouldn't imagine."

Cruz says the experts and social workers who have all weighed in against his side should bring their policy arguments before the state legislatures, not to the court. Describing Patrick Kennedy as a "300 pound man who violently raped an 8-year-old girl," Cruz says he is "exquisitely culpable."

If you're looking for some light reading tonight, check out John Paul Stevens' concurrence in the lethal-injection case. For the first time in years, a sitting justice is taking the position that capital punishment "[is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment," just as Harry Blackmun wrote near the end of his life that "the death-penalty experiment has failed. I no longer shall tinker with the machinery of death." You can spend tonight weighing the competing trends in favor of executing rapists against the trends away from it, or—for the ambitious among you—trying to count five justices who can agree on which of these trends counts for more.

Me, I am going to pour myself a big old drink and try to count the number of jurists who, after a lifetime on the court, have concluded that the death penalty in America simply cannot be fixed. Then I'll weigh them against the number who started off opposing capital punishment and became increasingly certain that the system works. Maybe this is yet another trend that doesn't matter. And Justice Scalia would tell me that the death penalty needn't be perfect to be constitutional. But it's probably not an accident that judges who have stood watch over hundreds of executions eventually need to believe that they are evolving toward a system that's at least better than what came before.

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Dahlia Lithwick is a Slate senior editor.
Photograph of a death chamber by Joe Raedle/Newsmakers.
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