High court do-over?

The justices of the U.S. Supreme Court, Justice Robert H. Jackson once archly observed, are not final because they are infallible; they’re infallible only because they are final. But what about when they’re not?

That question will be presented to the undoubtedly chagrined jurists when they return from their summer recess to consider a motion for reconsideration in one of the court’s most celebrated -- and criticized -- rulings of the past term. The case, Kennedy vs. Louisiana, established a prohibition against state laws that would subject anyone but murderers to the death penalty, a welcome result that halted the expansion of a barbaric exercise of the state’s ultimate power.

But in concluding that the nation’s “evolving standards of decency” commanded that ruling, the court relied in part on the incorrect belief that only six states authorize the death penalty for the rape of a child. In fact, a federal law and a separate executive order provide for the penalty under military law. Because of that mistake, the state of Louisiana has asked the court to reconsider its ruling.

The motion seems unlikely to prevail. The existence of the penalty in military proceedings does not undermine the balance of the court’s rationale, even though it does weaken it incrementally. As such, the court’s ban seems destined to stand.

The embarrassment will remain, however, and serves to remind that progress toward eliminating capital punishment once and for all through the courts will always be problematic. That’s not, as some conservatives would have it, because the Constitution does not allow for evolving standards. It does, and the court is right to recognize that the mere fact that one century countenances say, torture, does not bind all future generations to those standards. The trouble is thus not with evolution in principle but with how to measure changing standards. In this case, the court drew on the actions of legislatures and others, but it not only flubbed the military example, it arguably read too much into the legislative record. (Although only six states passed such laws, for instance, others might have had the court not left the impression that they would be overruled if they tried.)


For opponents of capital punishment -- including, emphatically, this page -- the sounder basis for its abolition lies not with the courts but with the legislatures. DNA evidence has helped illuminate cases of wrongful conviction, shattering the confidence of many onetime supporters of the death penalty. They have joined those of us who’ve long protested it as a moral abomination whose sanction places the United States in the ranks of the world’s most disreputable nations. With or without prodding from the courts, states should abolish capital punishment and clear this nation of its stain.