As recently illustrated in Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of "national consensus." Although this practice has been the topic of extensive commentary and criticism, the existing debate has overlooked the most natural implication of the Court's consensus-based argumentation--namely, the possibility that recent Eighth Amendment jurisprudence is subject to federal legislative override. This Article argues from existing case law that Kennedy should be susceptible to democratic correction via countervailing federal legislation. Such legislation would demonstrate that no "national consensus" supports the Court's holding, thereby suggesting that the punishment in question does not actually violate the Eighth Amendment. One might respond that Kennedy would have found a constitutional violation based on the Court's "independent judgment," regardless of whether a supportive national consensus existed. But even assuming that is true, federal legislation could address the concerns that underlie the Court's independent judgment analysis. Either way, Kennedy's contingent reasoning would permit at least some correction by the democratic branches. Exploring these possibilities allows us to better understand and justify recent Eighth Amendment jurisprudence, as well as recent substantive due process cases like Lawrence v. Texas that also look to state and federal practice as sources of constitutional law. Ultimately, though, the most important consequence of appreciating Kennedy's democratic reversibility has more to do with the President than with the professoriate. As a candidate for President, Barack Obama pointedly criticized Kennedy's holding. If this Article is correct, then the President and Congress now have an opportunity to engage the Court in a dialogue regarding the Eighth Amendment" s contemporary practical meaning.
INTRODUCTION I. WOULD COUNTERVAILING FEDERAL LEGISLATION SHOW THAT NO CONSENSUS EXISTS? A. Situating Kennedy in Eighth Amendment Jurisprudence B. Legislative Trends and Actually Imposed Sentences C. The Overriding Importance of Federal Legislation D. Justifying Kennedy's Methodology: Take One E. Was Consensus Necessary in Kennedy? F. Conclusion II. HOW MIGHT CONGRESS ADDRESS THE COURT'S INDEPENDENT JUDGMENT? A. Justifying Kennedy's Methodology: Take Two B. Enforcing the Eighth Amendment C. Addressing the Court's Independent Judgment 1. Reasons Within the Judiciary's Expertise 2. Reasons Outside the Judiciary's Expertise: Empirics 3. Reasons Outside the Judiciary's Expertise: Value Judgments D. Conclusion III. WHY CAN'T CONGRESS ALSO OVERTURN LAWRENCE V. TEXAS? A. Early Use of Objective Consensus B. The Eighth Amendment as Substantive Due Process C. Absence of Consensus as a Necessary Condition D. Contingency in Substantive Due Process Case Law E. Conclusion IV. DOES KENNEDY STAND UP TO CRITICISM? A. State-based Efforts to Overturn Kennedy B. Identifying Mechanisms for Reconsideration C. Chilling and Limbering Eighth Amendment Jurisprudence D. Originalism versus Reversible Eighth Amendment Doctrine E. Conclusion CONCLUSION: FIVE WAYS OF READING KENNEDY INTRODUCTION
In June 2008, the Supreme Court invalidated a Louisiana statute that made the rape of a child a capital offense. (1) The Court held that "the Eighth Amendment prohibits the death penalty" for child rape offenses that do not entail a victim's actual or intended death. (2) Therefore, the Court held that the Louisiana law "is unconstitutional." (3) When courts invoke the Constitution in this way, their edicts are typically received as final pronouncements. Though Kennedy itself never said as much, (4) the Court appeared to have rendered the death penalty for child rape forever unlawful in the United States. (5)
But events quickly took a turn toward the unexpected. The Court's analysis in Kennedy v. Louisiana had emphasized the existence of a "national consensus" regarding the categorical illegitimacy of applying capital punishment to child rapists. (6) This national consensus finding rested primarily on a survey of relevant state and federal legislation. However, the Court, the parties, and the amici had all overlooked a 2006 legislative amendment to the Uniform Code of Military Justice (UCMJ) making capital punishment available for child rape. (7) After this oversight came to light, Louisiana and the U.S. Solicitor General requested rehearing, arguing that the "national consensus" that the Court had relied on did not in fact exist. (8)
The Court could have declined the rehearing request on the ground that the exercise of its "independent judgment" fully and independently justified Kennedy's holding. (9) Indeed, two Justices voted to deny rehearing for precisely that reason. (10) In stark contrast, the same five Justices who comprised the Kennedy majority chose to deny rehearing on the different ground that Kennedy's consensus-based argumentation actually had not been called into question at all:
That the Manual for Courts-Martial retains the death penalty for rape of a child or an adult when committed by a member of the military does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional. The laws of the separate States, which have responsibility for the administration of the criminal law for their civilian populations, are entitled to considerable weight over and above the punishments Congress and the President consider appropriate in the military context. The more relevant federal benchmark is federal criminal law that applies to civilians, and that law does not permit the death penalty for child rape. (11) In other words, the Court rejected Louisiana's rehearing request because the particular type of evidence that had been discovered--a provision of military law--was not sufficiently probative of civilian legal mores to place the Court's national consensus determination in doubt. (12) By contrast, the discovery of a relevant "federal criminal law that applies to civilians" would have shed light on the "more relevant federal benchmark" and so would have constituted compelling evidence of national attitudes weighty enough to stack against the observed practices "of the separate States." (13) The Kennedy rehearing decision thus acknowledged that newly discovered evidence of a preexisting civilian statute might have prompted the Court to reconsider its decision--presumably because there can be no such thing as a national consensus rejected by the national government.
But what if the national consensus identified in Kennedy had been cast into doubt by legislation enacted after the Court's decision? The answer would appear to be the same. Indeed, once one follows the Kennedy rehearing decision in acknowledging that newly discovered evidence of existing federal law might prompt the Court to reconsider its decision, it is hard to resist the conclusion that entirely new federal legislation might have a similar effect. In both scenarios, the Court would have become aware of essentially the same new information only after it had made an initial decision on the matter. (14) The possibility of after-arising evidence of national consensus highlights the inherently contingent nature of consensus-based argumentation: When a particular state of affairs is the source of law, then the law's content becomes dependent on particular factual premises. And those premises may be subject to change or challenge by the political branches.
This Article argues that the contingency of Kennedy's reasoning should render the decision at least partially subject to democratic override. On the one hand, Kennedy's national consensus finding can be disproved by a countervailing federal law. On the other hand, the premises underlying Kennedy's independent judgment analysis can be undermined by new federally imposed criminal justice policies. Thus, an appropriately drafted statute would demonstrate that Kennedy's "premises of fact have so far changed ... as to render its central holding ... irrelevant or unjustifiable in dealing with the issue it addressed." (15) In short, such a statute could render Kennedy obsolete--a conclusion that would deny Kennedy the force of stare decisis and necessitate judicial reconsideration. (16)
Once understood as a contingent decision, Kennedy takes on new and greater importance, especially for substantive due process jurisprudence. As commentators have observed, Kennedy's methodology is similar to that of other so-called "state counting" decisions, such as Lawrence v. Texas. (17) One might therefore wonder whether understanding Kennedy as democratically reversible would make decisions like Lawrence similarly susceptible to legislative correction. In fact, the opposite is true. Kennedy and Lawrence are methodologically similar but not identical, with the result that Lawrence is immune to legislative override, whereas Kennedy is not. This distinction is not a matter of judicial fiat but of constitutional principle. Kennedy and Lawrence are therefore useful foils for one another, each illuminating the other's reasoning and practical implications.
Accepting Kennedy's factual contingency would also have immediate real-world consequences. At a minimum, Kennedy's many critics, (18) including then-presidential candidate Barack Obama, (19) would have to reevaluate their condemnation of the Supreme Court's decision in light of its susceptibility to legislative correction. (20) More importantly, reading Kennedy as a contingent decision shifts attention away from the Court and toward elected officials. As sworn defenders of the Constitution, (21) the President and Congress are necessarily Eighth Amendment interpreters in their own right. They should accordingly consider whether the Court's decision in Kennedy implicitly afforded the federal...