At SCOTUS Blog, Ben Winograd has posted "The Week Ahead."
On Wednesday, the state of Louisiana is to file a brief of up to 4,500 words expressing its views on the merits of the issue raised its petition for rehearing in Kennedy v. Louisiana (07-343), the opinion striking down use of the death penalty for child rape. The Court’s briefing order is available here, and a post containing the briefs filed last week by Kennedy and the United States is available here.
Former New Jersey Supreme Court Justice and Attorney General Peter Verniero has the OpEd, "To maintain its integrity, the court must own up," in Sunday's Newark Star-Ledger.
There is something almost sacrosanct about recitations of law contained in decisions of the U.S. Supreme Court. Lower-court judges, attorneys, law professors and everyday citizens depend on those statements in myriad ways even when disagreeing with the court's conclusions.
If for no other reason than that, the court should reconsider and correct an opinion it filed at the end of its last term, Kennedy vs. Louisiana.
And:
Interestingly, as reported in press accounts, an internet blogger first revealed the court's error by posting a comment on a military law site. None of the nine justices, their law clerks or the lawyers who collectively filed 10 briefs in the case picked up on the mistake. That's not really relevant, either. The court's error reflects only that judges are human with the same flaws as the rest of us.
What matters now is whether the court will stand up for its own integrity. The court should reconsider its decision as the first order of business when the new court term begins early next month. In a promising sign, the justices recently asked Louisiana's counsel and other lawyers involved in the case whether the court should rehear the matter and, if so, whether the existence of the 2006 military law should alter the court's ruling.
Whether the court ultimately reverses its decision will depend on the court's evaluation of a correct survey of the law. Until that happens, we will be left wondering whether its divided Louisiana ruling is entitled to respect based on an accurate review of the law or merely because the court decreed it to be so.
"On the Hill," from the Sunday New Orleans Times-Picayune carried this brief:
Sen. David Vitter, R-La., is asking his colleagues to support his resolution to put the Senate on record as disagreeing with the Supreme Court's ruling this year that rejected the death penalty for people convicted of raping a child. The case involved Patrick Kennedy of Harvey, who was convicted five years ago and sentenced to death. The Supreme Court, which ruled 5-4 that the death penalty was cruel and unusual punishment for a case in which the victim does not die, has since asked attorneys involved in the case to submit briefs on whether the high court should reconsider that ruling. Vitter said the Senate ought to express its position. "My resolution would allow the Senate to express an opinion that matches that of the majority of Americans -- that the court ruled improperly and that the ruling should be overturned," Vitter said. He complained that the Democratic majority isn't giving him a chance to bring up his resolution for a vote.
StandDown's earlier coverage is here.
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