Sep 6, 2008

Rehearing Kennedy v. Louisiana

From SCOTUSblog on September 5:

The Supreme Court issued its third and final round of summer recess orders on Friday, but the Justices announced no action on the plea to reconsider its ruling in Kennedy v. Louisiana (07-343), striking down the death penalty for the crime of child rape. The state of Louisiana on July 11 asked the Court to reopen the case to consider the effect, if any, of the fact that the Court had overlooked a federal military law on that death sentencing issue. The Justice Department has asked the Court to allow it to join Louisiana in its plea for rehearing. The Court did not act on that motion, either, on Friday.

While action on the rehearing issue could come at any time, the next scheduled point for releasing orders is the week of Sept. 29, following the Court’s first private Conference of the new Term. It is unclear whether the Court has yet actually focused on the rehearing request, since the Justices have been in summer recess. They have acted on a list of other rehearing requests, but most of those appeared to be without significant legal impact; the Court rarely grants rehearings of decided cases. Kennedy v. Louisiana was decided by a 5-4 vote; to grant rehearing, five Justices — including at least one from that majority — would have to approve a rehearing petition.

I wonder if one of the Justices in the majority (Stevens, Souter, Kennedy, Ginsburg, Breyer) would be willing to rehear it. Kennedy wrote the (terribly argued) opinion. It's not really the result that was so wrong (I'm honestly not sure whether I think child rapists should be executed), it's the reasoning behind the argument. Americans find the practice repugnant because only six states have enacted laws that allow for the execution of child rapists? All of those laws have been passed within the last dozen or so years, and there were more being pushed in the legislatures of many more states. That doesn't sound like it's unpopular. No one has been executed for child rape for many years? That doesn't mean it's unconstitutional. The fact that the last time we executed anyone for treason was the Rosenbergs in the 1950's doesn't mean it's unconstitutional. Kennedy never defines "evolving standards of decency," but assumes that a) they exist and b) he knows what they are. That's stupid reasoning. I think that it should be reheard, at the very least in order to let a new, better-reasoned opinion be written.

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