Patrick Kennedy was convicted of raping his eight-year-old stepdaughter L.H. A forensic expert testified that L.H.’s injuries were the most severe he has ever witnessed from a sexual assault. The jury also heard evidence that Kennedy had raped another eight-year-old girl. Kennedy was convicted of aggravated rape, because the victim was under twelve years old.

The jury voted to sentence Kennedy to death. The state supreme court affirmed the sentence and Kennedy appealed to the United States Supreme Court. Kennedy argued that the Louisiana statute allowing the death penalty for the rape of a child was unconstitutional. The Eighth Amendment prohibits cruel and unusual punishment, which includes penalties that are out of proportion with the crime. Kennedy claimed that capital punishment was out of proportion to rape and thus violated the Eighth Amendment.

Questions:

1. Did the Louisiana statute violate the Constitution by permitting the death penalty in a case of child rape? Is it proper for the Supreme Court to decide this issue?

2. Does Article III grant the power to the U.S. Supreme Court to overturn the law enacted by the Louisiana legislature?

3. Then, how is the U.S. Supreme Court able to overturn Louisiana’s statute?

4. What school of legal thought is Justice Alito invoking?