One of the few good things about the Bush Administration's Supreme Court appointments was that they were supposed to herald an end to the activist judiciary. The activist judiciary is a fundamentally unconstitutional and undemocratic institution, as lifetime appointed officials creating their own laws is something out of medieval Europe and has no place in a Democratic America. Nevertheless that's exactly what we have and if for a while Justice Roberts seemed to have a moderating influence on the Supreme Court, Justice Kennedy seems to have gone power mad lately and we now seem set for a bunch of increasingly activist decisions.
Case in point the latest SCOTUS ruling striking down a Louisiana law that allows the execution of people convicted of a raping a child. Now that law might arguably go too far, that is something for the voters, the legislature and the courts of Louisiana to decide. Striking it down as cruel and unusual punishment is extremely dubious to say the least. The misuse of cruel and unusual punishment was how the Supreme Court illegally and unconstitutionally barred the death penalty in the first place.
Now only is this latest Supreme Court decision a blatant violation of States Rights, but it once again puts the Supreme Court in the position of playing veto nanny to half the country by stretching the Constitution to mean exactly what it does not. The death penalty as applied today is clearly not what was meant by either cruel and unusual punishment. Neither is a so-called disproportionate use of the death penalty itself cruel and unusual. Disproportionate and cruel and unusual are not the same thing.
Now the Supreme Court has ruled that the death penalty is cruel and unusual punishment for anything but premeditated murder. The Court is willfully abusing the eight amendment and dragging out the old 1958 Trop vs Dulles "Evolving Standards of Decency" crap, itself one of old crazy Justice Earl Warren's decisions that categorized removing someone's citizenship as cruel and unusual punishment and created an endless slippery slope that allowed justices of the Supreme Court to characterize absolutely any damn thing they pleased as Cruel and Unusual Punishment... so long as they could claim it fit under "evolving standards of decency."
If the Supreme Court can't control its worst instincts to legislate law, instead of manufacturing it, maybe it's time to bring back good old FDR style court packing again.