Justice Antonin Scalia issued a blistering criticism of the court's action in standing by the prior decision. "The views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's decision in this case," Justice Scalia writes in a three-page statement joined by Chief Justice John Roberts.
Scalia says the majority justices simply imposed on the country their own policy judgment concerning capital punishment for child rape.
"While the new evidence of American opinion is ultimately irrelevant to the majority's decision, let there be no doubt that it utterly destroys the majority's claim to be discerning a national consensus and not just giving effect to the majority's own preference," Scalia writes.
In his majority opinion, Kennedy had supported the court's finding of a national consensus by noting that only six states had enacted laws making child rape a capital offense. He said five states had proposed similar legislation, but two of those efforts failed and the other three were still pending. In addition, Kennedy said that no individual had been executed in the US for the rape of an adult or child since 1964.
"We conclude there is a national consensus against capital punishment for the crime of child rape," Kennedy wrote in the June 25 opinion.
The decision came in a case called Patrick Kennedy v. Louisiana (07-343). Mr. Kennedy had been convicted and sentenced to death for raping his 8-year-old stepdaughter in March 1998.