Can Congress Overturn Graham v. Florida?

Abstract

Shortly after my recent Article, "Can Congress Overturn Kennedy v. Louisiana?", went to press, the Supreme Court released its decision in Graham v. Florida. This Coda accordingly updates the Article in two ways: first, by evaluating Graham’s novel “national consensus” analysis; and, second, by arguing that both Kennedy v. Louisiana and Graham should be understood as contingent decisions potentially reversible through federal legislation. This Coda thus renews the Article’s argument that Kennedy and related cases both do and should leave room for inter-branch dialogue regarding the Eighth Amendment’s contemporary practical meaning.

Keywords: Eighth Amendment, Kennedy v. Louisiana, Graham v. Florida, sentencing, capital punishment