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This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court. Keep up with all of our Supreme Court coverage and analysis by signing up for weekly email roundups. The best way to support our work—and unlock exclusive legal analysis—is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
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If there is one thing that is clear about the authority of the federal courts, it is the simple proposition that they can act only on real cases and controversies. Put differently, they are not empowered to render “advisory opinions” and offer “nonbinding interpretation(s) of law.”
As law professor Christian Burset notes, “The prohibition against advisory opinions is fundamental to our understanding of federal judicial power.” That is why the Supreme Court has, according to the research company EBSCO, “maintained a clear stance against issuing advisory opinions.”
Tell that to Judge Joshua Divine of the U.S. District Court for the Eastern District of Missouri. Last week, he took the extraordinary step of issuing an opinion to “explain why, contrary to common belief, Supreme Court precedent does not prohibit capital punishment for nonhomicide sexual offenses against children.”
He titled his statement a “sentencing opinion,” but neither the prosecution nor the defense had asked for it. Moreover, the statutory maximum for child rape in Missouri is 20 years in prison.
In March, the defendant, Anthony Moore, pleaded guilty to receiving child pornography. He also allegedly admitted to sexually assaulting a 13-year-old girl whose pictures he found while scrolling on his phone.
Divine did not say why he felt compelled to state his beliefs about permissible punishments. However, he cautioned that while the prosecutor’s decision not “to press heavier charges here … may reflect their view that this offense, though severe, was not as egregious as other sexual offenses,” that does not mean that other prosecutors and legislators are bound by Kennedy v. Louisiana, an existing Supreme Court decision declaring capital punishment for child rape to be unconstitutional.
Most of his opinion was devoted to showing why that view of Kennedy “is mistaken.”
Whatever its purpose, Divine’s opinion is an act of judicial lawlessness. It is a kind of nullification of a high-court ruling and an egregious effort to prompt state legislators to pass laws authorizing the execution of child rapists and to encourage prosecutors to seek such punishments whenever possible.
Divine might have picked up his cavalier attitude toward precedent while clerking for Justice Clarence Thomas during the Supreme Court’s 2020–21 term. Last September, Thomas asserted that existing court decisions are not “the gospel” and that they may be based on “something somebody dreamt up and others went along with.”
For someone like Thomas, Kennedy v. Louisiana would qualify as one of those cases.
Writing for the majority in Kennedy, former Justice Anthony Kennedy stated that the Eighth Amendment’s prohibition of cruel and unusual punishment “ ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ … Its applicability must change as the basic mores of society change.
“Evolving standards of decency,” Kennedy continued, “must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule.”
In his view, there was an emerging national consensus that the death penalty for a crime less than murder did not pass that test.
Thomas joined a dissent authored by Justice Samuel Alito, who labeled the majority’s invocation of “the evolving standards of decency that mark the progress of a maturing society” simply a smoke screen to allow judges to rewrite the Constitution as they see fit. On other occasions, Thomas has insisted that the Eighth Amendment be interpreted in light of the punishments permitted at the time it was written.
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Divine’s opinion follows in Thomas’ footsteps.
First, he argues that using evolving standards of decency could now lead to a different conclusion from the one the Supreme Court reached back when Kennedy was decided. “Although Kennedy concluded,” Divine writes, “that [evolving standards of decency] prohibited capital punishment in 2008, two decades have passed since then. Standards can evolve in either direction.”
This might be labeled “devolving standards of decency” jurisprudence, a holding certainly very much in vogue among the conservative majority of today’s Supreme Court.
Divine tries to make the case that the Kennedy decision itself “made clear that those standards can change in as few as 15 years, leading to different bottom-line outcomes.” He continues: “Today’s standards look quite different from those in 2008.”
He notes: “In the last three years, at least six States enacted new legislation permitting capital punishment for the crime of child rape. And following recent changes in technology, the rate of sexual offenses against children has skyrocketed.”
Having turned the evolving standards-of-decency test on its head, Divine lays out his case that SCOTUS had already confined it to the dustbin of history; the justices just hadn’t gotten around to administering the coup de grâce.
Eschewing any pretense of modesty, he says the Kennedy decision was a dead letter. However, it is hard to imagine that Thomas and his allies would label Divine a rogue judge, as they have other federal district judges.
That is because, even as he ignored precedent’s binding force, he paid homage to its jurisprudence.
As Divine puts it: “The conclusion that courts after Kennedy must assess anew whether the facts have changed is not only the best reading of the case law, but it is also consistent with the need to interpret the Constitution according to the Supreme Court’s history-based approach that has predominated for most of this nation’s existence.”
He writes that in light of the court’s embrace of originalism, “Kennedy may no longer be controlling precedent.”
He notes that in 2019, when
faced with the question whether the Eighth Amendment prohibited Missouri from using a method of lethal injection that the offender contended would be painful, the Court did not assess—or even mention—evolving standards of decency. Instead, … the Court asked whether Missouri’s plan to execute the offender was consistent “with the original and historical understanding of the Eighth Amendment.”
In Divine’s view, a view that is not traditionally recognized as offering a basis for overruling precedent, “the Supreme Court’s refusal to use a test [evolving standards of decency] can signify abandonment of that test.”
In the end, Divine’s advisory opinion is an invitation to every judge to decide for themselves when a precedent needs to be overturned and to not wait for SCOTUS to make that determination. And for a judge eager to expand this nation’s use of capital punishment, there is no time like the present to get on with that task.
Whatever one’s view of the death penalty, Divine’s example is a disaster. He would be well advised to recall what Justice Potter Stewart wrote almost 60 years ago: “Respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”
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It is too bad for all of us that the judge didn’t show such respect.