I actually agree, as a policy matter, that no rape, not even a child rape, should be made punishable by the death penalty. That's how I would vote were I a state legislator, or that's how I would wield my pen were I a state governor reviewing the legislature's acts. Louisiana's legislature and governor (and, in the case of the child rape capital crime in the UCMJ, Congress and the president) disagreed with you and me on that, however.

What's outrageous is the SCOTUS' imperious usurpation of that combined legislative and executive policy-making function. The least representative branch of either the state or federal government has, on all important matters relating to the death penalty, pre-empted the most representative branches of government who are best suited to make (and change, with experience) sensitive policy determinations. That Justice Kennedy et al. accomplish this coup d'etat by claiming to be divining "evolving standards of decency" — as if they're better equipped for that than, ya know, the actual elected representatives of the public — adds insult to constitutional injury.

Dave: Your point about over-advocacy is a very interesting one. When I was clerking, I was acutely aware that while I had to avoid obvious appearances of advocacy in the opinions I was drafting for my judge's review and adoption, nevertheless each such written opinion was, in a sense, a self-advocating written work, a self-justification for the decision contained in it. Trial courts and intermediate appellate courts also want to avoid being reversed; as a appellate law clerk, I learned how trial court findings and conclusions could be drafted to make the result they reached more effectively "bullet-proof" on further review. Every time I submit proposed findings and conclusions now, that's the subtle, implicit lure to the judge I'm asking to adopt them: "Use my arguments, cite my cases, structure your ruling this way, with alternative bases for your holdings, to make yourself less likely to be overturned (and my client to lose) on appeal."

Some of the criticisms of Justice Stevens' dissent in the gun control case suggest sloppiness that borders on, and probably crosses over into, outright intellectual dishonesty in an effort to support a particular line of reasoning and result. But that's a different sort of embarrassment than that which Justice Kennedy and, indeed, all the litigants and even the Justice Department have suffered here.

With apologies for link-whoring: My extended take, with an observation on what this mistake in Kennedy v. Louisiana tells us about the vastly more important case of Bourmediene v. Bush, is over on my own blog.