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.

I can’t applaud Glenn Greenwald enough for taking to task the Obamabots who read moral purity into every action of the presumptive Democratic nominee for president. I agree with both those who believe Obama’s decision on the FISA “compromise” legislation is both morally wrong and politically expedient. In Greenwald’s own words:

The excuse that Obama’s support for this bill is politically shrewd is — even if accurate — neither a defense of what he did nor a reason to refrain from loudly criticizing him for it. Actually, it’s the opposite. It’s precisely because Obama is calculating that he can — without real consequence — trample upon the political values of those who believe in the Constitution and the rule of law that it’s necessary to do what one can to change that calculus. Telling Obama that you’ll cheer for him no matter what he does, that you’ll vest in him Blind Faith that anything he does is done with the purest of motives, ensures that he will continue to ignore you and your political interests.

Beyond that, this attitude that we should uncritically support Obama in everything he does and refrain from criticizing him is unhealthy in the extreme. No political leader merits uncritical devotion — neither when they are running for office nor when they occupy it — and there are few things more dangerous than announcing that you so deeply believe in the Core Goodness of a political leader, or that we face such extreme political crises that you trust and support whatever your Leader does, even when you don’t understand it or think that it’s wrong. That’s precisely the warped authoritarian mindset that defined the Bush Movement and led to the insanity of the post-9/11 Era, and that uncritical reverence is no more attractive or healthy when it’s shifted to a new Leader.

I’ve actually seen a lot more revulsion regarding Obama’s decision than uncritical praise, so perhaps the Netroots isn’t so nutty as some would make it out to be. Nevertheless, I want to chide Obama for a stance that sends the troubling signal that he, like George W. Bush, may be all too willing to invest near dictatorial powers in the executive branch of federal government.

My blogging posts (here at TPM and on my own blog) towards Barack Obama during the primary season have ranged from occasionally critical (Donnie McClurkin, gay marriage, etc.) to mildly warm (praising Hillary Clinton as the safer, more cautious choice of candidate) to enthusiastic (ultimately offering my endorsement to Obama on the eve of Super Tuesday).

I clearly admire and respect the guy, but the degree of overzealous Obamaniac enthusiasm in some quarters continues to creep me out. As a side note, I’ll add that I think Obama’s gay supporters have, with obvious exceptions, been much more restrained in their enthusiasm towards the Man from Chicago. Few among us can honestly believe that Obama’s opposition towards gay marriage is truly based on principle, nor can we stomach comparisons between Obama and Martin Luther King, Jr. For all Obama’s strengths, history will look not back at Obama as a courageous leader in today’s great civil rights battles.

Cross posted at Joe Perez.