The most commonly raised criticism against the national consensus test of the ESD doctrine is that it constitutes an ongoing saga of judicial activism. Judicial activism occurs when a judge/justice upholds his or her own political, legal, religious, economic, or other beliefs contra society, thereby substituting the objectivity of existing laws for the subjectivity of personal preferences. Some may not feel that judicial activism is all that subversive. But judicial activism not only forces the judge/justice’s will on the people, but also it can greatly limit the legislative branch’s ability to function. The blurring of judicial and legislative lines can result in political stalemate, voter apathy, and a general distrust of government. Kimberly Bliss comments that under a democratic system “legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people” since the former has more contact with the people and has, in theory, been elected by the voters (1334).

Of course, it is difficult to demonstrate outright that a judicial holding was the direct result of a justice’s or a majority’s personal opinions. There are examples from both Coker v. Georgia and Kennedy v. Louisiana that provide support to the claim that the ESD Doctrine is actually judicial activism in disguise.
First, one can look at how a Supreme Court justice has ruled on different cases involving the same legal topic(s) or concept(s). Lain did this and found that “Justices Brennan and Marshall voted to reverse the death sentence in every case” that they heard regardless of the unique details involved (675). This perception of judicial activism is only reinforced when considered in the milieu of Coker v. Georgia in which the majority stated that even though “Coker had prior convictions for capital felonies – rape, murder, and kidnapping…these prior convictions do not change the fact that the instant crime being punished is a rape not involving the taking of life” (140). It seems, then, that the Supreme Court justices would ignore these aggravating factors since they could result in a case of rape that was heinous or vile enough to withstand the scrutiny of the proportionality test.
Additionally, one can look towards any indication of legislative feet-dragging or downright censure. Bliss states that “after the Supreme Court announced its decision in Kennedy v. Louisiana, eighty-five members of Congress sent a letter to the Court asking that its ruling be reconsidered…[since the] provision allowing for the death penalty in child rape cases passed the House of Representatives by a vote of three hundred and seventy four to forty-one, and passed in the Senate by a vote of ninety-five to zero” (1333). Given this Congressional reaction to Kennedy v. Louisiana, it would appear that the most appropriate response for the Supreme Court would be to turn the question over to the state legislatures. The state representatives would be permitted to debate the issue, with explicit and direct input from their constituents, and to craft legislation that accurately reflected their constituents’ views. Yet the Court refused, only strengthening the suspicion of critics who oppose the ESD Doctrine.
Yet another subset of criticisms has been raised by legal scholars Corinna Barrett Lain, Katheryn Klimko, Barbara Clare Morton, and Kimberly Bliss who collectively emphasize the methodological flaws of the ESD Doctrine. According to them, the ESD Doctrine is problematic because it is not static or uniform in its application. As legal scholar Lain notes:

“In some cases, the Court considers legislative sentencing trends in its analysis; in others, it does not. In some cases, the Court considers the views of professional organizations and international opinion; in others, it does not” (672-673).

In addition, the Court has not explicitly set out what constitutes a national consensus. Must it be merely 25 states in favor of one view over another? Must the national consensus be more qualified, perhaps including 30 States? The Court thus far has utilized only a simple majority requiring at least 25 States supporting or opposing a law or legal treatment in order to have it upheld or struck down under the proportionality and national consensus tests of the ESD Doctrine, respectively. However, it seems at least possible that there will come a case in which the Court shifts away from the use of a simple majority towards a qualified majority in order to determine a national consensus. This combination of doctrinal elasticity and judicial inconsistency concerns critics who worry that the doctrine could be further used as a vehicle for judicial activism.
Next, Morton directs attention to the fact that “[the ESD Doctrine fails] to apprehend the reality that tides of social opinion regarding the nature and extent of justified punishment may fluctuate over time” (2). What’s more, this fluctuation is not always or even necessarily linear. There may be regressions depending on several factors, including contemporary social events and political movements. These social events and political movements could include an increase in the rate and frequency of victimization. For example, if there were a drastic spike in the amount of rapes in a given place or during a given time, this fact could very well serve as a catalyst for the creation of new legislation that utilizes stricter and more severe punishment against those criminals.
Meanwhile, Klimko points out that “the Court’s consideration of public opinion…focuses on the rate of change in opinion rather than its absolute value, and thus often causes a judicially mandated “evolution” of the law before overall public opinion is equally evolved” (803). The Court has given more influence to how quickly or slowly laws have changed rather than focusing on whether the issue has been adequately and legislatively settled and in doing so, has forced other states to accept their judicial view on the matter.
Following Klimko, Bliss points out the possibility of a self-fulfilling prophecy when the ESD Doctrine is applied over an extended period of time:

“[A] limited pool of offenders who are potentially vulnerable to the death penalty will almost certainly result in a decreased number of offenders who will be sentenced to death. As the Court has…looked towards the actual number of individuals sentenced to death as evidence of the existence or non-existence of a national consensus, this potentially decreased number…has the potential of impacting the Supreme Court’s determination in future death penalty cases. By manipulating the possible pool of offenders exposed to the death penalty, the Supreme Court has unnaturally influenced one of the very “objective factors”…that it has typically relied on in determining whether or not there is a natural consensus concerning death penalty regulations” (1335).

The Court has thus become inappropriately enmeshed in the shaping of public policy, so much so that the ESD Doctrine gives off the impression that the Court is merely moving the goalposts away from its opponents whenever they come too close to overturning precedents.
These methodological flaws, it must be noted, provide further support to the claim of judicial activism. For if the Court is directly influencing the very criteria it uses for deciding Eighth Amendment cases, there is a risk that the justices could continue the trend of judicial activism. Similarly, since there is a wide range of criteria/sources to consider in deciding an Eighth Amendment case, the majority can, in theory, cherry pick which criteria it wants to emphasize in a particular case, thereby rigging the system to continually and incrementally reduce the Constitutional protection of capital punishment under the Eighth Amendment. This scenario is by no means a guaranteed state of affairs, but its significance cannot be ignored: the national consensus test of the ESD Doctrine is faulty and ought to be discarded.

Tagged: Evolving Standards of Decency, Human Rights, Kennedy v. Louisiana, Legality, Morality, Rule of Law, SCOTUS, US Constitution, US Supreme Court