In a dissenting opinion by Justice Samuel Alito, joined by Chief Justice John Roberts and Justices Clarence Thomas and Antonin Scalia, Alito dismissed Kennedy's evolving standards of justice rationale upon which the majority opinion rested. Kennedy noted that many states have done away with the death penalty or curtailed the types of cases to which it applies. Alito observed that many legislatures had scaled back death penalty cases because of a whole line of Supreme Court cases over the past several decades which make it difficult and costly to carry out sentences by execution.
Both presidential candidates criticized today's decision. Here's Sen. John McCain's statement:
As a father, I believe there is no more sacred responsibility in American society than that of protecting the innocence of our children. I have spent over twenty-five years in Congress fighting for stronger criminal sentences for those who exploit and harm our children. Today's Supreme Court ruling is an assault on law enforcement's efforts to punish these heinous felons for the most despicable crime. That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing.
Sen. Barack Obama issued a similar statement:
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 said at a news conference. "I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable that that does not violate our Constitution.
Ironically, the type of judges Obama has said he would appoint to the Supreme Court are more likely to side with the five justices who wrote today's opinion outlawing the death penalty for child rapists. McCain has identified Chief Justice John Roberts and Alito as the type of conservative jurists he would appoint to the Supreme Court.