•State lawmakers in Louisiana wanted to protect children from sexual predators, so they passed a law making child rape a capital crime. In a 5-to-4 decision last Wednesday, the justices struck down the law, saying there was a national consensus that a death sentence would be cruel and unusual punishment for a child rapist unless he killed his victim.
•In 2006, Congress and the president passed a law that sharply limited the ability of foreign terror suspects to challenge the legality of their open-ended detention at Guantánamo Bay. In a 5-to-4 decision on June 12, the court struck down the law and ordered the government to give the detainees access to American judges.
The Guantánamo ruling prompted a fiery dissent from Justice Antonin Scalia, who warned that the decision "will almost certainly cause more Americans to be killed." He and Chief Justice John Roberts blasted the majority justices for failing to accord the proper level of deference to the political branches of government.
Justice Anthony Kennedy, author of the Guantánamo decision, said the court had a duty to act and say what the law is. "The political branches," he said, "can engage in a genuine debate about how best to preserve constitutional values while protecting the nation from terrorists."
Justice Scalia called Kennedy's approach "faux deference." He added: "What the Court apparently means is that the political branches can debate, after which the Third Branch will decide."
The Washington gun rights case produced a version of the same debate among the justices. But this time it was Scalia defending the importance of upholding a fundamental liberty. "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad," Scalia wrote in the majority opinion in District of Columbia v. Heller.
