Could Kennedy v. Louisiana, the Supreme Court's child rape case, be overruled?

I was talking with _____, who had an idea for a creative response to the Supreme Court's decision in Kennedy v. Louisiana.

As a reminder, Kennedy was the case where the Supreme Court declared it unconstitutional to impose the death penalty on a defendant who's been convicted of raping a child, if the crime didn't result in death.

_____'s idea is about new legislation that could be enacted. The goal would be not to violate the holding in Kennedy, but to test its limits and possibly get it overruled. (I have _____'s permission to use the idea with the anonymous attribution.)

Before I get to the mechanics of how the idea could work, I want to be clear: there are many reasons why it's implausible that this would actually happen. So I don't mean this post to be a serious suggestion to anyone.

On top of that, I have no desire to see it happen. My view is: some people think it's already crossing the line just to execute anyone. Now, even if you don't take that position (i.e. if you support the death penalty), it seems like there should be some line that we can't cross. If we're going to have the death penalty, it seems like a good idea to say: we're not going to kill anyone unless that person killed someone. It's not that I deny that there are terrible people who deserve to die even though they didn't kill anyone; it's that if my government is going to be going around killing people, I want it to be tightly reined in by the clearest, most stringent principles. "An eye for an eye" is pretty clear. "An eye for anything that's arguably in the ballpark of the level of seriousness of an eye" sounds like a frighteningly expansive government power.

With that out of the way, here's the idea:

So, the Kennedy decision was based on various factors, but the main one was "evolving standards of decency" -- in other word's, America's (supposed) consensus on the issue of executing child rapists. According to the Court's majority opinion, a survey of the law in the jurisdictions that do allow the death penalty shows a "national consensus" that is "divided ... but, on balance, ... against it."

Now, it's open to question whether that's remotely accurate. Indeed, we now know that the Court was simply wrong on the facts when it comes to one pesky little jurisdiction: the federal government.

And I tend to cringe when the Supreme Court suddenly appoints itself supreme pollster of the American people's legal principles.

But that's what they said, so let's take it as a given.

Again, the Court looked at the specific statutes from each death-penalty state to discern a national consensus.

Doesn't that mean that if there were new statutes going the other direction, that the Court would have to reconsider?

"Oh, but now that the Court has already decided this case, you couldn't have new legislation going against it. The states can't choose not to obey the Supreme Court."

Well, I'm not talking about violating the Court's decision. Follow me here:

Death-penalty states could work together to draft uniform legislation, which each state would then pass, saying that they'll have the death penalty for child rape -- but with a twist.

Here's the twist: the statute may not be enforced until a sufficient number of states have passed this very legislation.

How many states would need to do this? I don't know -- that would have to be worked out. According to the Kennedy opinion, six states had laws authorizing the death penalty for child rapists. So let's say you had, oh ... 20 states adopting this sort of new legislation. Wouldn't that show an undeniable direction of change (to use the Supreme Court's phrase) of our "standards of decency" in the other direction, i.e. in favor of executing child rapists?

So the picture is this: you'd have state after state adopting this uniform legislation, but without anyone ever using it until they reached some magic number -- whatever number is specified by the law. Then, once that magic number is reached, a defendant could be sentenced to death for raping a child without causing death. This defendant would be very likely to petition the Supreme Court, and the Court would have a very strong basis for granting certiorari (i.e. choosing to hear the case).

The Supreme Court would then be faced with the argument: "You said it's based on evolving standards of decency. And you based this assessment on a survey of the relevant legislation in all states. Now there's new legislation that clearly indicates a sea change across the country. The rationale for Kennedy v. Louisiana no longer exists; therefore, it should be overruled."

Again, do I think this has the slightest chance of happening? No.

Do I want it to happen? Well, it'd be really cool if I could say that one of my blog posts led to a Supreme Court case ... but no.

In theory, though, I don't see why this isn't a wide-open possibility.

If _____ and I are right about that, then what does that say about how the Supreme Court decides its cases?


UPDATE: See the comments section over here for reactions to this post.