Alex Klein Publishes “Kennedy v. Louisiana and the Future of the Eight Amendment” in the Pepperdine Law Review This article addresses the potential for overruling Kennedy v. Louisiana and what that may mean for the future of the Eighth Amendment’s Cruel and Unusual Punishments Clause.

By Law Communications
March 7, 2025

Washington and Lee law professor Alex Klein has published an article in the Pepperdine Law Review. The article, “Kennedy v. Louisiana and the Future of the Eighth Amendment,” examines state laws that conflict with the U.S. Supreme Court decision in Kennedy v. Louisiana, which stated that imposing the death penalty for the rape of a child violated the Eighth Amendment’s Cruel and Unusual Punishments Clause.

“While Kennedy is settled law, the Court’s current approach to constitutional questions and recent Eighth Amendment jurisprudence demonstrate that constitutional protections that were assumed to be settled are now at risk, and the Eighth Amendment is in jeopardy. The Supreme Court’s recent decision in Grants Pass demonstrates that the Court is currently ‘stealth overruling’ its Eighth Amendment jurisprudence. The Court is likely to continue this project because of changes to its membership, its new approach to stare decisis, and legislative opportunism. This Article contributes to recent academic literature that addresses the future of the Eighth Amendment by analyzing how new state laws expanding capital offenses to include the rape of a child may undermine precedent through the Court’s reliance on “democratic deliberation” narratives, as described in scholarship by Professors Melissa Murray and Katherine Shaw that addresses the aftermath of Dobbs v. Jackson Women’s Health Organization. This Article describes two possible future directions for Eighth Amendment jurisprudence: “devolving” standards of decency—in which states can create a national consensus to undo constitutional protections—or, more likely, a restrictive historical approach. This Article concludes by discussing how these changes threaten the stability of Eighth Amendment jurisprudence and explaining the risks of legislative and judicial expansion of the death penalty after decades of judicial rulings that attempted to narrow it. It may be tempting to dismiss the consequences of overruling Kennedy— people convicted of sexually assaulting children are targets of universal revulsion. But undoing constitutional and legal standards because of outrage at criminal conduct weakens vital constitutional protections against cruel and unusual punishment,” writes Klein.

The article is available online at the W&L Law Scholarly Commons.