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If Ruth Bader Ginsburg were savagely raped, I wonder if she would consider it cruel and unusual punishment to execute the perpetrator?

If David Souter ever had children, and one of them was sexually brutalized, do you think he would consider it cruel and unusual punishment to execute the perpetrator?

How do you think John Paul Stevens might view a criminal degenerate who, God forbid, rapes one of his grandchildren?

How do you suppose Anthony Kennedy might rule on the punishment of someone who sexually victimized one of his kids or grandchildren?

Or how about Stephen Breyer?

When the bulletin came over the wire Wednesday that the Supreme Court had ruled capital punishment for child rapists was unconstitutionally cruel and unusual punishment, I didn’t have to check how the 5-4 ruling broke down. I knew the four sane and rational members of the court, those who actually care about the original intent of the founders who crafted the Constitution, were Chief Justice John Roberts, Associate Justice Antonin Scalia, Associate Justice Clarence Thomas and Associate Justice Samuel Alito.


I didn’t have to check even though all four of those justices are Catholic, members of a church that is largely split on the idea of capital punishment.

I didn’t have to check because a pattern is emerging on the Roberts court. So many decisions are by 5-4 splits – and almost all of them break down like this one on Wednesday.

The truth is that the majority of the Supreme Court cares little about what the Constitution actually says, nor does it care what those who wrote it were thinking about at the time. To Kennedy, Breyer, Souter, Stevens and Ginsburg, interpretation of the Constitution is merely an excuse for them to impose their will upon the people of the United States. They believe they know better than the vast majority of Americans. They have no more use for representative government than they do for the idea of an unchanging code of governance.

Let me illustrate what I mean through this recent ruling.

It was pointed out to the court that in the last 11 years, four states – Oklahoma, South Carolina, Texas and Montana – have passed laws allowing for capital punishment in the case of child rape. Sometimes the court considers trends like this in decisions as expressions of the will of the people. But not this time.

Kennedy explained the evidence showed “divided opinion but, on balance, an opinion against it.”

This is an example of the way the majority on the court weighs public opinion when it suits its agenda and discards it when it does not. The question must be asked: Does public opinion count for this court, or not?

In his dissent, Alito pointed out the grave harm rape imposes on children. One could even consider it “cruel and unusual.”

“It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty,” Alito wrote. “The court provides no cogent explanation why this legislative judgment should be overridden.”

And that is another pattern emerging with the majority on the court – there is little effort made to explain its decisions with any cogent argument, citation of relevant precedents or on the basis of constitutional law and history. In other words, the five members just do what they want to do. They are no more than politicians – legislators – disguised in the garb of judges sitting above the political fray.

Kennedy also demonstrated he believes he knows better than the Louisiana Legislature by explaining that a law permitting the death penalty for rapists would actually result in more murders of children. Again, this shows the justices making decisions based more on their own political instincts than the Constitution of the United States, which clearly leaves to the states the power to make laws on matters of criminal justice.

The Supreme Court has become a renegade institution that is stripping America of something most precious in the annals of history – a commitment to the rule of law and the will of the people. This arrogant little group is returning us to the days of the rule of men and the mocking of the will of the people.


Related special offers:

“Betrayed by the Bench: How Judge-made Law has Transformed America’s Constitution, Courts and Culture”

“Judicial Tyranny: The New Kings of America”

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