While a great deal of attention has been focused on the question of whether President Donald Trump and members of his administration will obey judicial decisions, including those of the U.S. Supreme Court, there is a quiet “revolution” happening in state legislatures. There too, we see stirrings of resistance.
If they spread, they have the potential to throw our constitutional order into chaos and crisis.
The latest example happened last month when the Alabama House of Representatives passed a bill that would make people convicted of the rape or sodomy of a child under the age of 12 eligible for the death penalty. The vote was 86-5.
Alabama’s House of Representatives did so even though the bill’s sponsors knew it would be unconstitutional to execute a child rapist. This kind of cavalier attitude toward the Constitution is a defining feature of our time.
One only needs to look at the first month of the Trump presidency for its most vivid expression.
And, of course, Alabama has a long history of thumbing its nose at the Constitution in the name of states’ rights. As a report on a local public radio station explained, “Alabama thought that way a century and a half ago when it invoked state’s rights as its rationale for keeping black people in chains…. Alabama thought that way again, half a century ago, when it tried to defy federal desegregation edicts.”
In 2015, in the wake of the United States Supreme Court decision legalizing gay marriage, Roy Moore, then the chief justice of the state supreme court, “sent a letter to all the local probate judges—in Alabama, probate judges issue the marriage licenses—instructing them to defy the federal courts.”
However, this year, Alabama lawmakers are not discussing open defiance. Instead, they are pursuing the same strategy that abortion opponents used to get the Supreme Court to reverse its Roe v. Wade decision.
But this strategy is almost as dangerous as outright defiance. In the context of arguments about how to punish child rapists, the danger is especially great since the horror of the crime seems to call for the most severe penalty.
It is one thing for a state legislature to pass a law in good faith, believing that it is constitutional. It is quite another thing to pass a law knowing it is not.
The lawyer and author Laura Bakst captures the danger of doing so when she reminds us, “Fundamental constitutional principles of federalism and judicial supremacy suggest that state legislatures are not empowered to pass law contrary to Supreme Court precedent.”
Bakst notes that this principle is almost as old as the Republic itself. “In 1809,” she writes, the Supreme Court held that “state legislatures cannot ‘annul the judgments’ of federal courts lest they ‘destroy rights acquired under those judgments, the constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.’”
She argues, “Once a statute is decreed unconstitutional by the Supreme Court, that statute must be considered objectively unconstitutional by state legislatures. Passing a law to the contrary, therefore, would violate a state oath of office to support and defend the Constitution of the United States.”
Oath or not, the Alabama legislators who want child rapists to be put to death hope that when their bill becomes law, someone will file a suit to challenge it. They want the United States Supreme Court to take up again the constitutionality of using the death penalty in that way.
They expect that if it does so, the Court will overturn its 2008 Kennedy v. Louisiana decision striking down laws that prescribe capital punishment for child rapists.
In that case, the Court held that “the Eighth Amendment bars states from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the child’s death. Applying the death penalty in such a case would be an exercise of ‘cruel and unusual punishment’ in violation of a national consensus on the issue.”
Writing for the majority, Justice Anthony Kennedy acknowledged the horror of child sexual abuse. “Petitioner’s crime,” he said, “was one that cannot be recounted in these pages in a way sufficient to capture in full the hurt and horror inflicted on his victim or to convey the revulsion society, and the jury that represents it, sought to express by sentencing petitioner to death.”
Nonetheless, the Court found that executing a child rapist would be a disproportionate punishment. As Kennedy explained, “The Eighth Amendment precludes capital punishment for any offense that does not involve the death of the victim.”
What has changed since 2008?
Nothing in the Constitution’s words or the Supreme Court’s precedents. Just the high court’s membership.
While three (Alito, Roberts, and Thomas) of the four Justices who were on the losing side seventeen years ago remain on the bench, no one who voted to strike down the death penalty in cases of child rape is still serving on the Court. Almost all of them have been replaced by Justices who are enthusiastic about capital punishment.
The Washinton Post reported that Alabama Republican Rep. Matt Simpson, a former prosecutor who is sponsoring the new legislation, “said the goal is to get the Supreme Court to revisit the decision.” The Post notes that what is happening in Alabama is part of a broader political strategy.
In 2023, before his state legislature “passed a bill allowing the death penalty for sexual battery of a child under the age of 12,” Florida Governor Ron DeSantis lambasted Kennedy v. Louisiana and candidly acknowledged his belief that “the Supreme Court in its current iteration would [not] uphold it.”
One year later, Tennessee followed suit, even though there is no evidence that the death penalty would be anything to spare children from the horror of sexual abuse, and they “require kids…to potentially be responsible for a death sentence levied to a family member.”
At the time, proponents again admitted that the law did not comport with the Supreme Court’s reading of the Constitution. US News reports that “lawmakers compared their goal to the decades-long effort that it took overturn Roe v. Wade.”
Referring to Kennedy v. Louisiana, one said, “Maybe the atmosphere is different on the Supreme Court. We’re simply challenging a ruling.”
But, as Bakst points out, there is nothing simple about a state legislature turning its back on a court ruling. According to the Death Penalty Information Center, this same thing is on the horizon in several other states.
Child sexual abuse is unspeakably vile. And like everyone else, I have no sympathy for those who commit such a crime.
They deserve condemnation and severe punishment. But deserve is only one condition for deciding how we respond to any crime, including those most offensive to us.
Until the Supreme Court changes its mind, no state should ignore its 2008 death penalty ruling or any other court decision forbidding it from doing something. Bakst gets it right when she says there is nothing wrong with “questioning the accuracy of Supreme Court precedent…when done through proper channels…. But addressing potential constitutional errors does not justify another constitutional wrong; legislators cannot flout their own constitutional duty under the guise of promoting the Constitution itself.”
That is true in Alabama and across the nation.
