In 2008, a majority of the Supreme Court decided that executing a man who raped his eight-year-old stepdaughter so violently that she required emergency surgery violated the Constitution’s prohibition on cruel and unusual punishment. That’s the holding of Kennedy v. Louisiana, 554 U.S. 407. Four justices disagreed. Sixteen years later, multiple states have passed laws saying the majority was wrong and they intend to prove it.
The majority opinion, written by Justice Anthony Kennedy — a different Kennedy than the defendant, which the press found reliably confusing — rested on the “evolving standards of decency” framework the court has used since Trop v. Dulles (1958). The test runs in two steps: first, count states and look for a national consensus; second, apply the court’s own independent judgment about proportionality. Kennedy did both and concluded that the death penalty for child rape, where the victim survived, was categorically off the table.
Justice Samuel Alito’s dissent, joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas, landed on a different reading of the evidence and a sharper critique of the majority’s method. The consensus, Alito argued, was circular. The 1977 ruling in Coker v. Georgia had cast a shadow over state legislatures for 30 years. Lawmakers who might have supported capital child rape statutes were deterred not by public sentiment but by the near-certainty of a judicial veto. Measuring consensus in those conditions tells you what legislators expected courts to do, not what they believed was right. The five states that had enacted child rape capital statutes in the years immediately before the oral argument, Alito noted, suggested the direction of travel was the opposite of what the majority claimed.
There was also an embarrassing error. The majority stated that no federal jurisdiction authorized the death penalty for child rape. That was wrong. Congress had amended the Uniform Code of Military Justice in 2006 to add child rape to the list of capital offenses — a fact that appeared in none of the 10 briefs filed with the court, and that the justices hadn’t caught. When the error was discovered after the decision, Louisiana petitioned for rehearing. The court denied it 7-2. Scalia and Roberts, who had joined the majority, filed a concurrence at rehearing saying the oversight didn’t matter because the majority’s analysis wasn’t really grounded in legislative consensus anyway. That concurrence reads, in retrospect, as a more honest description of what the court was actually doing.
Florida disagreed with what the court was doing and said so explicitly. In May 2023, Gov. Ron DeSantis (R-FL) signed House Bill 1297, which authorized the death penalty for aggravated sexual battery of a child under 12. It passed 95-14 in the House and 34-5 in the Senate. Tennessee followed in May 2024 with a nearly identical statute. Idaho, Oklahoma, and Arkansas passed similar laws in 2025. Legislators in each state have been transparent about the purpose: get a case to a court whose composition has changed and test whether Kennedy still commands five votes.
It’s a reasonable bet. Three of the four 2008 dissenters — Roberts, Alito, and Thomas — remain on the court. The four justices who joined the majority are retired or deceased. Among the six members added since 2008, at least three — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — approach constitutional questions through an originalist lens. And originalism is a problem for Kennedy v. Louisiana. Rape was a capital offense in most U.S. jurisdictions during the founding era and for most of the two centuries that followed. The “evolving standards of decency” framework was invented by the court, not ratified by the people, and its capacity to evolve in only one direction — toward restriction — has been noted with some skepticism by the current majority in other contexts.
The constitutional argument against the holding is straightforward. The Eighth Amendment prohibits cruel and unusual punishment. In 1789, executing a man who raped a child was neither. The “evolving standards” doctrine was constructed to permit the court to update its meaning; there is no textual or structural basis for requiring that updates run in only one direction. Alito made this point in his dissent: the Eighth Amendment is not a one-way ratchet. If evolving standards can restrict capital punishment, evolving standards can also expand it — or at least restore what the founding-era text permitted.
THE SUPREME COURT PROTECTED CHILD RAPISTS FROM EXECUTION. TWO STATES SAID NO
The state’s power to execute its citizens is serious, as is the history of wrongful convictions. But those are policy arguments, and Alito said in 2008 what remains true today: the Eighth Amendment doesn’t authorize courts to strike down criminal laws because judges think the policy is unwise. That’s a legislative judgment. Florida, Tennessee, Idaho, Oklahoma, and Arkansas have made one. The question is whether the court, with a substantially different membership and a different approach to constitutional history, is ready to acknowledge that the 2008 majority was doing policy and call it that.
The case that breaks Kennedy v. Louisiana is coming out of Florida. It’s just a matter of which defendant and which appeals court panel gets there first.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a BS from Northeastern University and has completed postgraduate studies at UCLA, UPENN, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.