Tuesday, October 17, 2017
One of the clear trends in Supreme Court 8th Amendment jurisprudence is an increasing reliance on quantitative analysis. Although both Justice Scalia and Justice Thomas reject this approach in favor of a literal reading of the text, that is reductive in my view. At some point the so-called 'plain meaning' of any phrase or sentence requires context, and the approach Justice Kennedy takes in Roper v. Simmons seems to be a reasonable extension of Chief Justice Warren's reasoning in Trop v. Dullas, where we get the concept of "Evolving standards of decency". What does "unusual" mean? Is what was once usual always usual?