Legal Commentary

A quick visit to the SCOTUS blog revealed that the State of Louisiana has filed its final brief asking for cert regarding Kennedy v. Louisiana, in which the Supreme Court of Louisiana decided that a death penalty for child rape was unconstitutional.

The post, and the brief, are interesting in many ways. My particular interest here is in how the State wants the court to measure public support for the death penalty.

Courts do not eagerly engage with empirical studies, and there is very little in the way of fact-based conclusions; we've seen this in many instances, such as racial discrimination arguments; something about the death penalty, however, generates the feeling that somehow it would be wrong to decide this without giving any input to public opinion.

But how do you figure out how people feel about the death penalty? Louisiana suggests, in the brief, to infer this from acts of congress.  According to the brief, if Congress, and the President, "evince" their support for death penalty from child rape, that indicates public opinion about this. This strikes me as a deeply flawed way to infer public opinion, democracy and representation notwithstanding. What do you think?