Justice Kennedy dreams up a national consensus

In the Supreme Court's decision on Wednesday in Kennedy v. Louisiana, holding that the death penalty is excessive for all rapes of children, I was surprised by the weakness of Justice Kennedy's arguments about a "national consensus."

If the American public has a "national consensus" about child rape, it is that the death penalty is appropriate and that the courts are too lenient in punishing first-time offenders. But that's not the sort of national consensus that Justice Anthony Kennedy wants to follow.

Here are some of the questions I found in two post-1990 studies archived at the Roper Center:

JUNE 1997:

1. Do you favor the death penalty for someone convicted of each of the following? ...

A. Murdering an ordinary citizen
75% Favor
21 Oppose
4 Not sure

B. Sexually molesting a child
65% Favor
31 Oppose
4 Not sure

C. Rape
47% Favor
46 Oppose
7 Not sure

Survey by Time, Cable News Network. Methodology: Conducted by Yankelovich Partners, June 4-June 5, 1997 and based on telephone interviews with a national adult sample of 1,024.

AUGUST, 1991:

1. Do you favor or oppose the death penalty for people convicted of sexual abuse of a child?

47% Favor
45 Oppose
5 Depends (vol.)
4 Don't know

2. Now some questions about people convicted of sex offenses such as rape, sexually abusing a child or incest.

Do you think people who are convicted the first time of sexually abusing children are given too harsh a punishment, too lenient a punishment or is it about right?

2% Too harsh
75 Too lenient
13 About right
10 Don't know

3. When it comes to punishment, do you think sexually abusing a child should be treated as a more serious, equally serious, or less serious crime than raping an adult?

87% More serious
12 Equally serious
1 Less serious
1 Don't know

4. (I'm going to read several pairs of different types of crimes. For each pair, please tell me which one you think is worse.)...

Rape of an adult or sexual abuse of a child...

2% Rape of an adult
90 Sexual assault of a child
7 Both equal (vol.)
1 Don't know

Methodology: Conducted by The Star Tribune, August 6-August 25, 1991 and based on telephone interviews with a national adult sample of 1,101.

Data provided by The Roper Center for Public Opinion Research, University of Connecticut.

Note that in 1997, 65% of Americans favored the death penalty for child molesters, an increase from 1991, before most of the public furor about molestation. If the question had been put in terms of "child rape," support for the death penalty might have been even higher.

I do not think that the Supreme Court should be mostly following public opinion in determining what the Constitution means. After all, the Constitution was designed in part to protect individuals against the tyranny of the majority. And sometimes the public is too bloodthirsty (e.g., in 1997, 44% favored the death penalty for those who sell drugs to children and 17% favored death for the "victimless crime" of selling drugs to adults).

Yet the Court shouldn't talk about following a "national consensus" on an issue on which in 1997 only 31% of the American public agreed with the Court and 65% of the public opposed the Court's view. The justices should admit that they follow ELITE opinion, not the views and morality of the ordinary public. If they can't go that far, they should at least stop preaching to us about a "national consensus" that is little more than a fig leaf for their own (often quite reasonable) policy preferences.