The Court's decision today -- in a narrow 5-4 ruling -- strongly signals that America's understanding of "cruel and unusual" punishment evolves over time, and says the role of the Justices is to carefully judge those moral standards and apply them fairly. The death penalty is now prohibited in cases of child rape.

The Justices find a national consensus against imposition of the death penalty in child rape cases (only 5 states allow death for this crime, and the punishment is extremely rarely carried out). Not to be overlooked are their astute observations that states appling the death penalty for child rape remove the incentive for rapists not to murder their victim; they discourage reporting of child rape, especially when family members are involved; and they also present a “special risk of wrongful execution” because such cases usually rely on testimony from children (who have a documented risk of unreliable, induced, and imagined testimony).

On the other hand, a dissenting opinion filed by Alito relies on unusually specious reasoning, holding that there is no national consensus against the imposition of the death penalty. Why? Because state legislatures have been dissuaded from enacting their true "values" because of past supposedly activist rulings of the Supreme Court. Really. Legislators feared, they say, that the Court created “a bright line between murder and all rapes—regardless of the degree of brutality of the rape or theeffect upon the victim.” The problem is the Court said no such thing (the plain language of the relevant ruling limited its scope only to the rape of adult females, not children). Most bewilderingly, they acknowledge that legislators' fears are legitimate because one former Justice (Powell) misunderstood the law to apply to child rape. Therefore, because one judge said the ruling might mean something it plainly does not, legislators were "reasonable" in fearing an activist Court.

I don't have the specialized knowledge of legal experts. But I don't hesitate to say that a bare majority of the Court is willing to accept their role as arbiters of America's evolving standards of civility and human decency. For their willingness to do their jobs, we can all be grateful. Justice requires widom informed by an ability to balance many competing values and perspectives, and protect the legal rights of those persons some segments of society are most likely to treat inhumanely. Less hopeful is the fact that there are four Justices on the Court who neglect the evolving nature of our collective national conscience, making them forces of resistance and regression.

John McCain denounced the decision today, hoping to exploit the fears of his conservative base and reaffirm his Tough on Crime reputation. Republican allies, pundits such as Ross Routhat, say today: "I don't think that rape, even the rape of a child, merits the death penalty..." but nevertheless these opinionists are too weak in their convictions to say that America should prohibit inhumane treatment of prisoners. Our Court lies precariously divided between friends and enemies of the Good as it is revealed by the clear development of a consensus in our collective moral consciousness.

Cross-posted at Joe Perez.