The Continuing Unevolving Model of Decency, Kennedy v. Louisiana in Peril

Professor Metze reflects on Kennedy v. Louisiana in its part in the development of Eighth Amendment jurisprudence and how the Supreme Court initially used Kennedy to further our understanding of the limits of the Eighth Amendment. The Court recently avoided a meaningful discussion of how our society is maturing and evolving by acknowledging a purposeful effort of some to reflect modern beliefs in opposition to those who would interpret everything through an 18th-century prism. After a case-by-case analysis of how the Court has used Kennedy, it is apparent the conservative majority now on the Court has decided there is no longer any reason to continue to use the evolving standards of decency that mark the progress of a maturing society when understanding the limitations of the Eighth Amendment. Soon, the Court will continue to set aside a generation or two of Supreme Court precedent to satisfy the political demands of those that secured that conservative majority for their own purposes.