The Court Must Keep Kennedy: The Future of Kennedy v. Louisiana in the Face of State Legislative Developments

By: Ashlyn Doane

In 2008, the United States’ Supreme Court held in Kennedy v. Louisiana that the death penalty should not be applied to child rape or any other crimes against individuals where the victim’s life is not taken.[1] Despite four dissenting justices and much criticism, Kennedy has remained good law.[2] However, at the time of this blog post, five states have passed laws making sexual crimes committed against children capital offenses.[3] Additionally, two states have such legislation pending.[4]

The Court is meant to evaluate the constitutionality of death penalty laws in light of the evolving standards of decency as determined by a national consensus and the Court’s independent judgment.[5] As such, the recent passage of these laws and the current makeup of the Court could lead to the overturning of Kennedy. However, trends among the Court’s death penalty jurisprudence have suggested that the standards of decency could only evolve to limit death penalty applications. If the Court were to overrule Kennedy, it would be the first instance of the Court expanding applications of the death penalty, suggesting that the nation’s standards of decency are capable of devolving.

Whether or not the Court could legitimately overturn Kennedy, it should not because the Eighth Amendment is meant to operate as a one-way ratchet. In other words, the Court can eliminate punishments deemed to be cruel and unusual, but it cannot reinstate them. Although the Court stated in Harmelin v. Michigan that the Eighth Amendment is not a one-way ratchet,[6] that statement does not comport with the application of the evolving standards of decency test.

First, the test makes it nearly impossible to change the national consensus in a way that would expand applications of the death penalty. As stated by one of the justices during oral arguments in Atkins v. Virginia:

 [L]ogically it has to be a one-way ratchet. Logically it has to be because a consensus cannot be manifested. States cannot constitutionally pass any laws allowing [for example] the execution of the [intellectually disabled] once [the Court determines] it’s unconstitutional. That is the end of it. [The Court] will never be able to go back because there will never be any legislation that can reflect a changed consensus.[7]

The test practically forecloses any opportunity to change the national consensus because doing so would require a significant number of states to pass unconstitutional laws. If the Court wanted to give itself a realistic opportunity to overrule its death penalty decisions in favor of expansion, it should have adopted a different test. But the Court has not yet done so. Rather, it has continuously applied the evolving standards of decency test as is, requiring challenging states to pass the basically insurmountable hurdle of demonstrating a national consensus over the adoption of an unconstitutional law. A test that weighs so heavily in favor of maintaining restrictions on the death penalty suggests that they are not meant to be overruled. It suggests that the Court only wants to limit the applications of the death penalty.

Second, the Court’s independent judgment is determinative, and it has never exercised this judgment to expand applications of the death penalty. The evolving standards of decency test does not allow the establishment of a national consensus to dictate which punishments are constitutional. Rather, it merely makes it part of the Court’s consideration. It operates this way to prevent the whims of society from allowing the imposition of cruel and inhumane punishments. Public attitudes may change, and jurisdictions may come to want certain offenses or individuals to be death eligible, even if at an earlier time they did not have such desires. However, just because a punishment gains popularity does not make it humane. Nor does it mean that it should become constitutional. It seems absurd to suggest that if the majority of states passed legislation that allowed the death penalty to be applied to anyone, regardless of age, if they commit a capital offense, that the Court should have to or would overturn Roper v. Simmons. The Court found it to be unnecessarily cruel to execute juveniles because of their diminished culpability.[8] That diminished culpability remains regardless of whether states stop caring about it. For this reason, when the Court has already exercised its independent judgment to find an application of the death penalty unconstitutional, it seems unlikely that it will overrule it.

Some may suggest that the Court’s justifications provided in Kennedy are not as strong as those offered in other cases, like Roper, and that the Court erred in deeming such punishment cruel and unusual to begin with. As such, there may be no obligation to defer to the Court’s judgment. Such an argument would not be wholly without merit. The Kennedy decision is not as strong as death penalty opponents would like, as it is difficult to hang one’s hat on the argument that the rape of a child is not depraved or harmful enough.[9] However, this author takes the position that regardless of weaknesses in the Court’s justification of its independent judgment, once the Court deems a punishment cruel and unusual, the punishment must remain unconstitutional. To hold otherwise, would invite challenges to any death penalty jurisprudence so long as the challenging statutes receive enough state support, allowing for a sort of mob rule in place of a constitutional standard that is meant to protect against inhumane punishments.

Furthermore, overruling decisions that restrict applications of the death penalty is inherently a devolution, as it allows for reversion to an unconstitutional standard. Although the Court may be permitted to overrule itself in other areas of the law, such a practice is incompatible with the evolving standards of decency test. Standards of decency are only meant to evolve towards “constrain[ing] the use of the death penalty.”[10] Not only is this a logical understanding of the standard definitionally, but it is also how the Court has always applied it. There is no reason for the Court to deviate from how it has consistently understood and applied the evolving standards of decency test.

As more states pass statutes that allow the death penalty for child sex crimes, the likelihood that the Court will revisit Kennedy increases. But the Court should not overrule Kennedy, as doing so will undermine and unravel its Eighth Amendment jurisprudence. A punishment cannot cease to be cruel and unusual, and standards of decency are not meant to devolve. To hold otherwise would invite challenges to all previous decisions that limited the scope of the death penalty merely because enough of the public has a renewed interest in cruelty.

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[1] Kennedy v. Louisiana, 554 U.S. 407, 437 (2008).

[2] Chief Justice Roberts and Justices Scalia and Thomas joined Justice Alito’s dissent. See id. at 447 (Alito, J., dissenting). Additionally, many academics expressed their dissatisfaction with the Court’s opinion when the Kennedy decision came out. See Jeffrey Omar Usman, State Legislatures and Solving the Eighth Amendment Ratchet Puzzle, 20 J. Const. L. 677, 702 (2018); Eric Posner, The Eighth Amendment Ratchet Puzzle in Kennedy v. Louisiana, Slate: Convictions (June 25, 2008, 11:06 AM), http://www.slate.com/blogs/convictions/2008/06/25/the_eighth_amendment_ratchet_puzzle_in_kennedy_v_louisiana.html; Heidi M. Hurd, Death to Rapists: A Comment on Kennedy v. Louisiana, 6 Ohio St. J. Crim. L. 351,

365 (2008); Laurence H. Tribe, Opinion, The Supreme Court Is Wrong On the Death Penalty, Wall St. J. (July 31,

2008), https://www.wsj.com/articles/SB121746018426398797.

[3] These states include Florida, Tennessee, Idaho, Arkansas, and Oklahoma. See H.R. 1297, 2023 Leg., Reg. Sess. (Fla. 2024); S. 1834, 114th Gen. Assemb., Reg. Sess. (Tenn. 2024); H.R. 380, 68th Leg., 1st Reg. Sess. (Idaho 2025); S. 375, 95th Gen. Assemb., Reg. Sess. (Ark. 2025); S. 599, 2025 Leg., Reg Sess. (Okla. 2025).

[4] These states include Alabama and Missouri. See Alabama House Joins Florida and Tennessee to Advance Unconstitutional Expansion of Death Penalty that Advocates Say Would Harm Children, Death Penalty Info. Ctr. (Feb. 19, 2025), https://deathpenaltyinfo.org/alabama-house-joins-florida-and-tennessee-to-advance-unconstitutional-expansion-of-death-penalty-that-advocates-say-would-harm-children; SB 196, Mo. S., https://www.senate.mo.gov/25info/BTS_Web/Bill.aspx?SessionType=R&BillID=496 (last visited Mar. 13, 2025).

[5] These are the two-prongs of the evolving standards of decency test used by the Court in evaluating cases with the 8^th Amendment’s “cruel and unusual punishment” clause at issue. See Coker v. Georgia, 433 U.S. 584, 593–97 (1977); Enmund v. Florida, 458 U.S. 782, 788–89, 797 (1982); Penry v. Lynaugh, 492 U.S. 302, 334 (1989); Stanford v. Kentucky, 492 U.S. 361, 370 (1989); Atkins v. Virginia, 536 U.S. 304, 312–13 (2002); Roper v. Simmons, 543 U.S. 551, 564 (2005).

[6] 501 U.S. 957, 990 (1991).

[7] Meghan J. Ryan, The Death of the Evolving Standards of Decency, Fla. St. U. L. Rev. 255, 276 (2024) (quoting Transcript of Oral Argument at 10, Atkins v. Virginia, 536 U.S. 304 (2002) (No. 00-8452)). It is unclear which justice made this statement because their names are not recorded and the responding attorney did not state their name. Id. at 276 n. 168 (citation omitted).

[8] Roper v. Simmons, 543 U.S. 551, 569–71 (2005).

[9] In articulating its independent judgment on the matter, the majority took the position that child rape is not depraved or harmful enough to warrant the death penalty merely because the victim lives. See Kennedy v. Louisiana, 554 U.S. 407, 437–38 (2008) (quoting Coker v. Georgia, 433 U.S. 584, 597–98 (1977) (plurality)). Despite the Court’s concern with proportionality, it did not rule out capital punishment for certain crimes against the state, like “treason, espionage, terrorism, and drug kingpin activity.” Id. at 437. This apparent contradiction significantly weakened the quality of the Court’s independent judgment.

[10] Kennedy, 554 U.S at 439.