The Denouement of Kennedy v. Louisiana

Amid all the events of last week, I got distracted from noting here a very interesting piece of news that came out of the Supreme Court on Wednesday.  A majority of Justices (the same majority that that voted to strike down Louisiana's law allowing the imposition of death for child rape in the first place) voted to deny a motion for rehearing filed by Louisiana in Kennedy v. Louisiana.  The state filed the motion after a law blogger in the National Guard noted that Congress recently passed a law expressly permitting the imposition of the death penalty on members of the U.S. military who commit child rape. That fact --which neither the parties, nor any of the amici, nor the Justice Department informed the Court about of and which went apparently undiscovered by all of the Justices-- is arguably quite relevant to the majority’s determination in Kennedy that relative lack of state and federal laws that permit a sentence of death for child rape is evidence that there is a national consensus against the practice.

But, not surprisingly, the five Justices from the Kennedy majority didn’t see it that way, contending that because the provision is one of military law (rather than civilian law) it is entitled to little weight.  Justices Thomas and Alito voted, without explanation, for rehearing.  Chief Justice Roberts and Justice Scalia found the law an important piece of evidence but voted against rehearing because, in the words of Justice Scalia,

[T]he views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this:  “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.

(Citation omitted.)

And that’s that.