The Nine [191]
In the same lethal injection case, Thomas contributed one of the more bizarre opinions in his tenure. He used the case to compile a history of execution grotesqueries, proving, in his view, that the original understanding of the Eighth Amendment allowed the imposition of pain on the condemned. For example, the penalty for treason in eighteenth-century England, Thomas wrote, quoting an old document, was that “you shall be hanged by the necks, not till you are dead; that you be severally taken down, while yet alive, and your bowels be taken out and burnt before your faces—that your heads be then cut off, and your bodies cut in four quarters.” Thomas’s point apparently was that anything—anything!—short of this kind of torture was permissible under the Eighth Amendment. To his credit Thomas had pushed his originalism to its logical extreme, even at the cost of endorsing a barbarism that has, fortunately, long vanished from American life.
The relative absence of controversial cases, particularly early in the 2007–2008 term, obscured the fundamental truth that had emerged the previous year—that this Supreme Court belonged to Anthony Kennedy.
The big cases that year generally concerned issues—such as abortion, civil rights, and employment law—where Kennedy sided with the conservatives. That was not true in the 2007–2008 term. Two of the biggest cases involved the death penalty and the treatment of the detainees at Guantánamo Bay; in both, Kennedy tended to side with the liberals, and that is what he did in 2008.
In 1977, the Court ruled in Coker v. Georgia that, under the Eighth Amendment, the rape of an adult could not be punished with the death penalty. For many years, this decision was widely understood to mean that the death penalty could never be imposed for rape. (No one had actually been executed for rape since 1964.) But enterprising politicians in a handful of states identified what they thought was a loophole in Coker. The decision did not state explicitly that rape of a child could never be punished by death, so Louisiana and five other states amended their laws to allow for the death penalty in such cases. In 1998, Patrick Kennedy’s eight-year-old stepdaughter was raped. He was arrested a few days after the crime, but there was no trial until 2003. Kennedy was ultimately convicted and sentenced to die.
The case had the potential to widen considerably the range of crimes for which the death penalty might be appropriate—including rape, kidnapping, and even other kinds of assault. Justice Kennedy had voted with the seven-justice majority in the lethal injection case, of course, but the international consensus against the death penalty still weighed heavily on him. He was the author of Roper, which ended the death penalty for juvenile offenders, and Patrick Kennedy’s lawyers relied heavily on that case in urging Justice Kennedy, clearly the swing vote, to overturn the sentence. At the oral argument, Kennedy sounded unexpectedly sympathetic to the government, but in the end he voted to reject the death sentence, and Stevens asked Kennedy to write the opinion.
In ruling against the death penalty for child rape, Kennedy relied in large part on what he called the consensus against such punishment—the fact that