Monday, September 1, 2014

Blind Spot

This summer, Justice Ginsburg, in response to a question about the recent Hobby Lobby decision accused the male members of the Supreme Court of having a "blind spot" in regards to the rights of women.

Do you believe that the five male justices truly understood the ramifications of their decision?” Couric asked Ginsburg this week. “I would have to say no,” Ginsburg replied.

This comment falls in line with the accusation of a "War on women", an insensitivity and lack of consideration toward the plight and concerns of women.

Reading this comment of hers I could not help but think back just a few years to a case called Kennedy v Louisiana (2008), a  case before the Supreme Court concerning the brutal rape of an 8 year old girl. What follows is the abbreviated detail on the case present in the majority opinion itself.

"Petitioner’s crime 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 to society...When police arrived at petitioner’s home between 9:20 and 9:30 a.m., they found L. H. on her bed, wearing a T-shirt and wrapped in a bloody blanket. She was bleeding profusely from the vaginal area. Petitioner told police he [stepfather and actual perpetrator] had carried her from the yard to the bathtub and then to the bed...L. H. was transported to the Children’s Hospital. An expert in pediatric forensic medicine testified that L. H.’s injuries were the most severe he had seen from a sexual assault in his four years of practice.

The little girl had denied her step-father had committed the crime, protecting him, but the evidence was overwhelming that he had in brutal fashion raped his step-daughter. In response and pursuant to the law in Louisiana he was sentenced to death.

The Court decided that the Eighth Amendment's prohibition against "cruel and unusual punishment" prevented the man from receiving the death penalty. This, in spite of the unequivocally clear allowance for the death penalty in the Constitution in the Due Process Clauses of the Fifth and Fourteenth Amendments that state no person shall be deprived of life without due process of law and in the Fifth's Grand Jury Clause that guarantees that no person shall be held for a capital crime without a grand jury indictment. If you can be deprived of life (after due process) then capital punishment was clearly not "cruel and unusual punishment.'

The Court cast aside the plain meaning of the Constitution and instead based on "our own independent judgment" and the "evolving standards of decency (!) that mark the progress of a maturing society" overruled the Louisiana law. This Supreme Court ruling explicitly allowed for the death penalty to remain in place for crimes against the state (like espionage or treason) but not for a brutal rape of an underage girl. So if an Edward Snowden were apprehended he could receive the death penalty but not the perpetrator of this type of crime.

What caused me to think of this case was that of the five Supreme Court members making this decision in 2008 was a single woman--Ruth Bader Ginsburg. The same woman who six years later in 2014 would opine that the male members of the Court were insensitive to the plight of women in not mandating that an employer violate their religious beliefs and pay for a select few drugs they considered abortifacients.

                                                 Who here has the blind spot?

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