But even those who harbor serious doubts about capital punishment should feel duty-bound to oppose carve-outs from its reach that denigrate certain classes of victims, or that arbitrarily override democratic determinations that such victims deserve maximum protection.When even a liberal like Tribe is put off by the idea of a court reversing what elected legislators have decided, it is worth noting. The Court has an opportunity to reverse their decision in Kennedy v. Louisiana because they made an error in assuming that there was a trend away from allowing the execution of child rapists by ignoring that Congress in the National Defense Authorization Act had actually provided for execution of child rapists in the military. One of the foundations for the Court's decision was the supposed national consensus against such a penalty. But the revelation that there is indeed a law passed by the majority of the Congress and signed by the President refutes that conclusion. And it was always a rather tendentious conclusion, because one reason more states hadn't passed such laws was because of the uncertainty from a previous decision that left it unclear whether the Supreme Court would consider constitutional the death penalty for a crime that didn't result in death.
If a legislature were to exempt the killers of gay men or lesbians from capital punishment, even dedicated death penalty opponents should cry foul in the Constitution's name. So too, should they cry foul when the judiciary holds the torturers or violent rapists of young children to be constitutionally exempt from the death penalty imposed by a legislature judicially permitted to apply that penalty to cop killers and murderers for hire. In doing so, the court is imposing a dubious limit on the ability of a representative government to enforce its own, entirely plausible, sense of which crimes deserve the most severe punishment.
If the Court loses the part of its argument that Justice Kennedy made about the national consensus, all that is left is the part of his decision that said that capital punishment for such a crime is wrong. If they don't reconsider and change their original decision, the five justices will be telling us that they consider their own opinion of what is a fitting punishment to trump what elected legislatures, including the Congress of the United States think.
Now that Louisiana has asked for a rehearing, the Court has a chance to reexamine a mistake that they made in the first place. They should listen to Laurence Tribe.