Obama and the Court

From TAPPED:

BARACK OBAMA, PANDER-BEAR?

Well, this seems like a naked pander to me: Barack Obama says he disagrees with yesterday's Supreme Court decision striking down the death penalty for child rapists. The Wall Street Journal reports:

“I disagree with the decision. I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes,” Obama told reporters at a press conference in Chicago.

The expected Democratic nominee said he believed the rape of a child “is a heinous crime” that fits the circumstance, siding with the four conservative justices who sit on the court, Chief Justice John Roberts, and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas.

Alito's reasoning in his dissenting opinion, though, was quite flawed, as Scott explains so ably. Alito wrote that child rape evidences a depravity deeper and far more disturbing than that of, for example, a guy who holds up a convenience store and stands by while his accomplice shoots the clerk. Therefore, Alito wrote, the child rapist should be subject to the death penalty, just like the robber. But as Scott points out, couldn't this also mean that the robber shouldn't be subjected to the death penalty? Secondly, Alito argued that the fact that several states allow the death penalty for child rapists proves the practice is backed by public consensus. But at the time of Brown v. Board, or Miranda, or Loving v. Virginia, dozens of states allowed practices that the Court deemed unacceptable.

If Obama has a separate, deeper reasoning for opposing the Court's decision yesterday, he should have out with it. Otherwise, I'll be forced to believe this is a pander. After all, about two-thirds of Americans support the death penalty.

Well, there are any number of reasons to oppose the decision. Firstly, you might agree with Obama's stated reason: Hey, I don't like the death penalty that much, but as long as we're killing people, child rapists probably deserve it.

More broadly, one could feel, as John Stuart Mill did, that the Death Penalty is a tool government ought to have, and that this decision basically bans the death penalty for all non-capital cases. The court certainly seems to be heading in the direction of a complete ban in incremental steps. While I oppose the Death Penalty on pragmatic rather than theoretical grounds, I'm not going to cry if they get rid of it because of theory.

A third reason could be a growing realization on Obama's part that the Court is a conservative institution, historically biased against executive power. The court almost undid the New Deal; although we remember most vividly decisions like Roe and Brown, Liberal courts are rare — President Obama will almost certainly prefer a quiet court that lets him do what he wants.

My suspicion is that Obama actually opposes the death penalty, for reasons similar to my own: it doesn't work as a deterrent, it mainly effects poor minorities, and there are too many mistakes to believe anything close to justice is being achieved. But he also probably doesn't oppose it in theory, meaning that he could agree with the outcome of the court's decision, while disagreeing with their reasoning, and therefore honestly oppose the decision. In other words, the perfect pander. After all, about two-thirds of Americans support the death penalty.