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Opinions/Editorials Title: Crime and Punishment Peels Kennedy From Conservatives U.S. Supreme Court Justice Anthony Kennedy's majority opinion forcing California to cut its inmate population sharpened his divide with conservative colleagues over what constitutes cruel and unusual punishment. Backed by the court's four liberals, Justice Kennedy has delivered a series of opinions since 2005 that have abolished the death penalty for minors and for adult criminals who left their victims alive. A Kennedy ruling also required that juvenile offenders be given an opportunity to seek parole unless their crimes included murder. And on Monday, the Reagan appointee wrote the decision prohibiting California from housing inmates in prisons incapable of providing with them essential medical care—even if that requires the release of felons before they complete their sentences. The prisoner-rights decisions mark a striking contrast to the court's trajectory since the mid-2000s, when President George W. Bush elevated Chief Justice John Roberts and Justice Samuel Alito. Together with them and veteran justices Antonin Scalia and Clarence Thomas, Justice Kennedy has formed a majority to uphold gun rights, permit unfettered corporate and union political spending and undo certain limits on governmental support of religion. But when it comes to the Constitution's Eighth Amendment, which prohibits "cruel and unusual punishments," Justice Kennedy has championed a doctrine that echoes the liberal Warren Court of the 1950s and '60s: that the prohibition be applied, as Chief Justice Earl Warren wrote in 1958, according to "the evolving standards of decency that mark the progress of a maturing society." The Warren opinion referred to English precedents dating to the Magna Carta and said the "basic concept underlying the Eighth Amendment is nothing less than the dignity of man." Justice Kennedy cited Chief Justice Warren's opinion Monday, then applied it to the California case. "Prisoners retain the essence of human dignity inherent in all persons," Justice Kennedy wrote. More Eighth Amendment cases could reach the high court in coming years. While the court approved a three-drug recipe for lethal injections in 2008, some suppliers of the narcotics have dropped out of the business and states have substituted other chemicals. That could invite challenges from condemned prisoners alleging that untested formulas would cause unconstitutional levels of pain. And new cases may test the implications of Justice Kennedy's earlier opinions limiting punishments for underage offenders. This month, the Wisconsin Supreme Court found it constitutional to sentence a 14-year-old to life imprisonment with no chance of parole. Justice Kennedy has looked to social science and modern practices in his earlier decisions outlawing the harshest punishments. "By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons," he wrote in the 2005 opinion Roper v. Simmons, abolishing the death penalty for juveniles. Such positions have put him at odds with Justice Scalia, who misses no opportunity to stress his contempt for Chief Justice Warren's "evolving standards" formula. "I detest that phrase," Justice Scalia said at a law-school forum in 2005, "because I'm afraid that societies don't always mature. Sometimes they rot." In his Monday dissent—joined only by Justice Thomas—Justice Scalia wrote that Justice Kennedy's opinion was unprecedented, even under "our judge-empowering 'evolving-standards of decency' jurisprudence." Justice Scalia says he construes constitutional provisions according to their original meaning. Dissenting from Justice Kennedy's Roper opinion, Justice Scalia said "cruel and unusual" originally meant that judges could only impose punishments authorized by the legislature, rather than fashion their own. On Monday, Chief Justice Roberts and Justice Alito filed a separate dissent that avoided mention of the "evolving standards" or "dignity" concepts. Justice Kennedy's opinion included an array of anecdotes regarding prison conditions in California, where "as many as 54 prisoners may share a single toilet" and a psychiatric patient was "held in a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic." Justice Scalia replied that the Constitution doesn't authorize judges to prescribe "rules for the 'decent' running of schools, prisons and other government institutions." He offered his own vivid image, saying that many of those released wouldn't be ill inmates but "fine physical specimens who have developed intimidating muscles pumping iron in the prison gym."
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