Kennedy v. Louisiana and the Lessons of a Supreme Court Oral Argument

By SHERRY F. COLB
Wednesday, Apr. 30, 2008/td>

On April 16, the U.S. Supreme Court heard argument in Kennedy v. Louisiana, a case challenging the constitutional validity of a death sentence imposed for the rape of a child. In this column, I will take up some of the intriguing ideas that emerged from the questions that various Justices posed to the attorneys arguing before them. In particular, Justice Ruth Bader Ginsburg and Chief Justice John Roberts, in their efforts to understand the force and content of earlier Court precedents, revealed important clues to their respective views on a variety of issues.

Precedent on Point: Coker v. Georgia

As I discussed in an earlier column, this will not be the first time that the Supreme Court has considered whether to classify the crime of rape as insufficiently serious to warrant capital punishment. In Coker v. Georgia, the Supreme Court found the death penalty to be a grossly disproportionate and therefore unconstitutional punishment for the rape of an adult woman. The Justices reasoned that even though rape is a serious offense, its victims live to see another day and therefore cannot rightly demand the ultimate retribution.

There was no opinion for the Court in Coker. Justice White wrote a plurality opinion, onto which three other Justices (Blackmun, Stevens, and Stewart) signed. Justices Brennan and Marshall concurred in the judgment, reiterating their view that the death penalty is unconstitutional under all circumstances. Justice Powell wrote separately, stating that with additional aggravating circumstances such as permanent injury or excessive brutality, he might approve of the death penalty for rape. And finally, Chief Justice Burger, joined by then-Justice Rehnquist, dissented; both would have upheld the death penalty for rape.

Why analyze the composition of the various opinions in Coker? One reason is that at least some of the currently sitting Justices care deeply about stare decisis (the force of precedent) and might hesitate to uphold the death penalty for the rape of a child, if they viewed the earlier ruling as effectively deciding that no rape can constitutionally trigger an execution. For such Justices, the lack of a majority opinion for any one position might be seen as leaving the holding in Coker up for grabs and therefore entitled to less deference. Of course, even if there had been a majority opinion, the proposition that the rape of an "adult woman" may not be punished by death could, in theory, be distinguished from the proposition that execution is a disproportionate penalty for the rape of a child.

Justice Ginsburg's Questions Reveal A Novel Interpretation of Coker

In the course of the argument, Justice Ginsburg made plain her view that the ruling in Coker does not have any necessary implications for the case pending before the Court. She noted the distribution of Justices in the Coker plurality, stating that "Justice Powell wrote separately, and I thought he left open [the circumstance of] an outrageous rape resulting in serious, lasting harm to the victim…. So you don't have an opinion of five Justices saying that, in any and all circumstances, rape that leaves the victim alive cannot be punished by the death penalty."

Jeffrey L. Fisher, attorney for petitioner Patrick Kennedy, responded persuasively that because two Justices considered the death penalty categorically unconstitutional, there were actually six votes (not four) for the proposition that executing a person for rape would violate the Eighth Amendment. Justice Powell's view thus represented the seventh and not the fifth vote for the ruling in Coker. (As Fisher noted, moreover, Powell's view would actually aid Fisher's client, Kennedy, who was sentenced to die under a law requiring no special aggravating factors such as those that Powell envisioned as necessary to making the death penalty for rape permissible.)

Though Fisher's point (that Brennan and Marshall's across-the-board opposition to capital punishment must be counted in the majority in a case striking down a death sentence) seems unassailable, Justice Scalia injected "That's [sic] strange way of making a majority, isn't it?" Scalia then added "I think … you have to discount the people who would not allow the death penalty under any circumstances for any crime." Perhaps Justice Scalia, on this theory, should discount his own (and Justice Thomas's) votes in any case upholding abortion restrictions against constitutional challenge. After all, their own view as to the constitutionality of abortion regulation is as sweeping and categorical as Brennan's and Marshall's view as to the unconstitutionality of the death penalty.

Beyond her odd suggestion that Coker might not qualify as a full-fledged majority ruling about executing rapists, Justice Ginsburg made a curious argument distinguishing between the execution of rapists of "adult women" and the execution of rapists of children. She interpreted Coker v. Georgia as a positive step for racial and sexual equality and then indicated that on this interpretation, Coker is consistent with upholding the death penalty for rapists of children.

Justice Ginsburg explained that the reason rapists had previously been executed is that women were considered worthless – as good as dead – once they were raped and thereby "spoiled." As Justice Ginsburg explained it, "[T]he argument was made from an earlier tradition when a woman was regarded as as good as dead once she was raped; and the crime was thought to be an offense against her husband or her father…. And that was the background of Coker, plus the racial element in it was very strong." She added that "the notion was that making rape equivalent to murder was no kindness to women, because it said once you've been raped, you're spoiled. That's not – there's no parallel with child rape."

Justice Ginsburg is unquestionably correct that rape was once perceived as an offense against a woman's father or husband, and that rape victims were considered damaged goods. Nothing in the opinions that reached the result in Coker, however, relied on a rejection of this traditional view of rape as a reason to invalidate the death penalty for rapists. Indeed, in his dissenting opinion, Chief Justice Burger -- who would have upheld the execution of a rapist of an adult woman – articulated a modern view of the harm that rape represents, citing "the reality that rape is inherently one of the most egregiously brutal acts one human being can inflict upon another." He also said that "[v]olumes have been written by victims, physicians, and psychiatric specialists on the lasting injury suffered by rape victims." There is not a hint here of the misogyny that Justice Ginsburg identifies with execution for the rape of an adult woman.

Thus, rather than affirming the value of all women – even those who have survived rape – as Justice Ginsburg imagined it did, the plurality opinion in Coker by some lights failed to take the crime of rape (a crime disproportionately committed against women) sufficiently seriously. The question originally presented there made no mention of victim categories, asking only "Was the imposition of the death penalty for the crime of rape a form of cruel and unusual punishment forbidden by the Eighth Amendment?" It was then the Justices in the plurality who chose to single out execution for the rape of an "adult woman" as uniquely disproportionate and excessive.

By doing so, the plurality Justices implicitly devalued the suffering of adult women by comparison to that of two other groups of potential victims: adult males and children of both sexes. One could thus characterize the plurality as carving out as less injured the category of rape victims who have "only" suffered a man-against-woman attack.

Chief Justice Roberts's Remarks at Oral Argument: Questioning Proportionality Review

Assuming that one believed that Coker should be followed, one could take the position that because children are not adult women, the Court might legitimately treat the issue presented in Kennedy as one of first impression. How one chooses to characterize Coker is therefore an important step in determining the stare decisis significance of that decision.

Though the Court in Coker spoke of adult women, however, it did not put forward any arguments for distinguishing, on Eighth Amendment grounds, between the rape of an adult and the rape of a child. Its arguments, instead, focused on the fact that although rape is a terrible crime and a victim's "life may not be nearly so happy as it was," the crime does leave her alive and "normally [] not beyond repair." Even with the aggravating factors required by the Georgia statute at issue, then, what distinguished rape as unsuitable for the ultimate penalty – according to the plurality opinion in Coker – was less about who or what was involved in the rape than about what was not involved, namely the killing of a victim. On that reasoning, the execution of a child-rapist does seem to violate the logic (if not the letter) of Coker. Like the adult, the child victim of rape survives.

Yet that does not mean the petitioner will necessarily prevail – especially as oral argument indicated that some of the Justices would be comfortable with the prospect of revisiting the principle established in Coker. As Chief Justice Roberts said (in pointed contrast to Justice Ginsburg's assessment of Coker), "I think it's fair to say that society's recognition of the seriousness of the crime of rape has evolved even since, the period since Coker."

Moreover, and notably, the Chief Justice went further. Fisher had just argued for the petitioner that some states consider the next most serious crime after murder to be aggravated assault on a prison guard, while others consider it to be aggravated kidnapping. His point was that it is only murder on which a societal consensus exists about its "capital" nature; beyond that, lines cannot and therefore should not be drawn. The death penalty ought accordingly to be off the table.

Chief Justice Roberts, however, took a very different lesson from this line-drawing problem. If the line between capital-worthy and non-capital-worthy offenses is so hard to draw, Roberts suggested, shouldn't the Court exercise restraint in striking down the death penalty as disproportionate to the nature of certain crimes? Roberts commented, "I wonder if that's more something on which we have less basis for determining the issue than a legislature…. I don't know how we decide this for the reason you were just saying: What crimes are more serious than others?"

If there were any doubts about where this line of reasoning might lead, the Chief Justice cleared them up immediately, saying "I wonder if it brings into play our jurisprudence on things like the three-strikes law and others where we sort of say: We can't judge how serious crimes are and which ones are more serious than others, and so we leave that to another branch."

In other words, Roberts was suggesting that, just as the Court has failed to apply an exacting proportionality review to the non-capital sentencing area – permitting life imprisonment, for example, of a person convicted of three relatively trivial property offenses – so should the Court permit the death penalty for whatever offenses a legislature might see fit to call "capital."

Should Chief Justice Roberts's position become that of a majority, this would represent a significant change in the law, one that would go far beyond the classification of child rape (or of all rape) as sufficiently serious to warrant the death penalty. It would challenge the very notion, long held by the Supreme Court, that "death is different" and that higher standards must therefore apply to its imposition.

Reading Tea-Leaves

One cannot simply read an oral argument transcript and predict the future with any certainty. Justices play devil's advocate and ask questions to amuse themselves even when they have already decided to rule in favor of the client of the attorney to whom they pose their questions. Still, the Justices' inquiries in Kennedy do suggest a greater likelihood of the Court's upholding the death penalty for child rape than one might have predicted prior to arguments.

More specifically, Justice Ginsburg appeared open to drawing a line between execution for the rape of an adult woman and execution for the rape of a child, a line that she defended, quite poorly, on feminist grounds. She also seemed poised to announce a new approach to interpreting precedents about the death penalty – one that would discount the votes of those in the majority who categorically consider the penalty unconstitutional. Justice Scalia, too, apparently agreed that categorical anti-death-penalty votes should be ignored.

Finally, Chief Justice Roberts, by contrast to Justice Ginsburg, appeared to view the potential execution of rapists as evidencing moral progress toward an enlightened view of the harm of rape. In defending the State of Louisiana's right to execute child-rapists, moreover, he took the surprising position that courts have no reliable metric by which to determine which crimes are serious enough to call for execution. If the Chief Justice can assemble four additional votes for this view (and he surely can count on Justices Scalia's and Thomas's), then we might see a future in which a growing category of crimes are subject to the ultimate penalty. In a case involving the brutal rape of an eight-year-old by her stepfather, this could represent the most surprising development of all.


Sherry F. Colb, a FindLaw columnist, is currently a Visiting Professor at Columbia Law School and will be joining the Cornell Law School faculty in the fall. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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