Two threads: Kennedy v. Louisiana and Senator Obama’s Catholic Advisory Group

Today, I should like to bring together two recent threads of discussion that have been appearing over the last few days, i.e., Senator Obama’s Catholic Advisory Group and today’s Supreme Court decision in Kennedy v. Louisiana. I shall begin with the second first.

In his dissent, Justice Alito in the Kennedy case begins his dissent by stating:

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of raping a child. This is so, according to the Court, no matter how young the child, no matter how many times the child is raped, no matter how many chil­dren the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpe­trator’s prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for the rape of a child; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for child rape is inconsistent with “‘the evolving standards of decency that mark the progress of a maturing society.’” (reference omitted). Because neither of these justifi­cations is sound, I respectfully dissent.

I have taken the small liberty of altering slightly Justice Alito’s opening paragraph of his dissenting opinion and substituted references to “rape” and “child rape” or “the raping of a child” with “abortion” or a word or phrase that addresses abortion. The text now reads:

The Court today holds that the Eighth Amendment categorically prohibits the imposition of the death penalty for the crime of abortion. This is so, according to the Court, no matter how young the child, no matter how many times to abort the child are attempted, no matter how many chil­dren the perpetrator aborts, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpe­trator’s prior criminal record may be. The Court provides two reasons for this sweeping conclusion: First, the Court claims to have identified “a national consensus” that the death penalty is never acceptable for abortion; second, the Court concludes, based on its “independent judgment,” that imposing the death penalty for abortion is inconsistent with “‘the evolving standards of decency that mark the progress of a maturing society.’” (reference omitted). Because neither of these justifi­cations is sound, I respectfully dissent.

I do not know if Justice Alito would approve of my taking some small liberty with the opening paragraph of his dissent. But as law teachers, I think we often exercise the license of professorial prerogative to make some point relevant to the law, the teaching of it, and the learning of it. As I read Kennedy v. Louisiana, the five-justice majority strives to make the distinction between the taking of life, i.e., murder, and the raping of a child which, in spite of the enormous damage, does not conclude with the taking of the physical life. The other takings of aspects of life, while acknowledged by the majority, just don’t seem to count for the imposition of the death penalty. All right, the majority of the Court has spoken.

But let us consider Justice Alito’s remarks more carefully. By my substituting abortion for rape, do we not come to the same thing—the taking of a physical life of another that may be protected by the law, regardless of the penalty? I think so. Justice Alito is making an important point regarding the gravity of child rape. But, with his language, we can see that any taking of innocent human life is the most grievous of offenses. So, why might murder be a crime that could deserve the death penalty but abortion is a constitutional “right”? Something doesn’t add up here, and that is why I think Justice Alito and three other members of the Court are on to something.

This brings me to my first point which is treated in the second place, Senator Obama’s Catholic Advisory Group. I wonder if the distinguished members of this panel, some who hold important public office and some who hold prestigious positions in the community that include academic posts of distinction, will advocate that the Senator reconsider his magnanimous support of abortion “rights”? Surely, as faithful Catholics, they, the members of this advisory group, will recognize that the most fundamental of human rights is the right to live so that in turn one has the ability to take advantage of all that rest that life has to offer. In spite of the complexity of issues and the difficulties of dealing with them, as Amy implies, if the members of the Catholic Advisory Group do not understand this fundamental point, then I fear their ability to help the common good, let alone CST or CLT, will be lost. Perhaps, like Justice Alito, they, too, should consider dissenting not from the candidate but from the views he holds so dearly but so wrongly on this critical issue not only of this election but of this age.

RJA sj