While I was arriving and departing various airports today, the U.S. Supreme Court announced a revision to its opinion in Kennedy v. Louisiana, and rejected a request by Louisiana for a rehearing of the case.
Let's start with the initial SCOTUS Blog post, "Court modifies Kennedy death penalty opinion, grants 10 new cases."
The Court’s modified opinion in Kennedy v. Louisiana is now available on the Court’s website, at this link. This is the version that will appear in the United States Reports, the official record of the Court’s opinions. The separate opinions released on Wednesday are also available on that website, at this link.) Those separate opinions, explaining or commenting upon the denial of rehearing, will be reported in the U.S. Reports separately, as part of the Court’s “opinions related to orders.” The Court is expected, however, to insert a note with the modified opinion referring the reader to these opinions further back in the volume.
Lyle Denniston followed that post with his must-read analysis, "The death penalty calculus is unchanged." Here's a small excerpt:
After a summer of public conversation, and legal argument, the Supreme Court put an end — at least temporarily — to the speculation that it might alter its approach to the constitutionality of the death penalty. Despite the very unusual (though not unprecedented) alteration of a previously issued opinion, the Court still is committed to a two-step method of deciding whether a death sentence for a given crime violates the Eighth Amendment. If there is anything new about that calculus, is it that military law probably does not count in it. In fact, the Court left open — as it had before — the question of whether the Eighth Amendment governs the military in the same way it does the civilian community. That might be tested at some point in the future in a military death penalty case — rare though they are.
But the two-step Eighth Amendment analytical formula the Court has relied on for years remains entirely intact. The first step is to check for a “national consensus,” canvassing the views of policymakers and legislators at all levels of government. That does not end the inquiry, however. The Court, as indicated in the original Kennedy v. Louisiana opinion issued on June 25, assigns “great weight” to such “objective evidence of contemporary values,” but it added that that “does not end our inquiry.”
The second step, then, is for the Court to use its own “independent judgment” — a more-or-less free-standing inquiry “informed” by “our precedents and our own understanding of the Constitution and the rights it secures.”
In Legal Times, Tony Mauro reports, "Supreme Court Denies Rehearing in Child Rape Case."
Justice Anthony Kennedy, who wrote the original majority opinion, wrote on Wednesday that the military death penalty for rape had been the rule for more than a century, and when the Supreme Court in 1977 decided in Coker v. Georgia that the death penalty was unconstitutional for the crime of adult rape, military law was not considered. He also said a military criminal law should not necessarily color the constitutional analysis of a related law in the civilian context.
But the Court, on its own motion, did modify its June decision by adding footnotes and other wording in the majority and dissent making note of the military law change, but concluding that "the military penalty does not affect our reasoning or conclusions."
"Court Won’t Revisit Death Penalty Case," is Adam Liptak's report in Thursday's New York Times.
On Wednesday, Justice Kennedy wrote that the 2006 amendment merely tinkered with a statute that had long authorized capital punishment for the rapes of both adults and children. He added that “authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context.”
Justice Kennedy acknowledged that the last time the military imposed the death penalty, in 1961, it was for rape and attempted murder. He did not say that the victim had been an 11-year-old girl. The defendant in the case before the court, Patrick Kennedy, had been convicted of raping his 8-year-old stepdaughter.
Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr., also voted not to rehear the case, but on a different ground. Justice Scalia called the original decision disingenuous and suggested that nothing would change it. “The 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,” he wrote.
"Court Won't Reconsider Ban on Execution for Child Rape," is Robert Barnes' report in the Washington Post.
The court rarely grants new hearings in cases it has decided. A rehearing would have required five votes, including one from the previous majority.
The existence of the military law came to light only after a civilian Air Force lawyer, Dwight Sullivan, noted it in his military law blog after the decision. His report led to a front-page New York Times story on the omission.
"Supreme Court upholds death penalty ban in the rape of a child," is David Savage's Los Angeles Times report.
Kennedy pointed out that no member of the military was facing a death sentence for raping a child. "In any event, authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context," he said.
Warren Richey has, "Despite gaffe, Supreme Court won't revisit landmark child-rape ruling," in Thursday's Christian Science Monitor.
The June 25 decision said only six states had laws authorizing capital punishment for child rape. But unknown to the justices at the time they wrote the opinion, Congress in 2006 had amended the nation's military law to authorize capital punishment in such cases for child rapists. In 2007, President Bush issued an executive order concurring with the congressional action.
These actions were not discussed in the case briefs to the high court or at oral argument.
In light of the new information, the US Solicitor General's Office and the state of Louisiana asked the court to rehear the case and take a fresh look at whether a "national consensus" had really formed against the practice.
The answer came on Wednesday. The author of the opinion, Justice Anthony Kennedy, and the four other members of the majority stood behind the landmark decision, agreeing only to amend the opinion with a footnote mentioning the congressional action.
"The court has determined that rehearing is not warranted," Justice Kennedy said in a three-page statement.
Mark Sherman's AP dispatch is, "High court rebuffs Louisiana in child rape case."
Lawyers for Patrick Kennedy, whose death sentence was overturned by the court, said the justices got it right the first time. Kennedy's lawyers said military law has long authorized death as punishment for rapes of adults and children, but that the military hasn't sought to execute a rapist in more than 40 years.
The administration took no position when the case was argued, but backed Louisiana's call for a new hearing. The administration said in court papers that Kennedy's opinion "rests on an erroneous and materially incomplete assessment of the 'national consensus' concerning child rape."
"Court will not revisit death penalty for child rape," is Diane Jennings' post at the Dallas Morning News Crime Blog.
Texas had a statute similar to the one that was struck down by the Court, but no one was prosecuted under that law.
In the New Orleans Times-Picayune, Paul Purpura examines local response in, "Supreme Court won't rehear La. child rape case."
As he did following the June 25 decision, Gov. Bobby Jindal lashed out at the court, saying justices were "dead wrong in their ruling."
"It is disappointing that they did not take this opportunity to move quickly to rehear this case and examine their legally improper and absurd decision to remove death as a penalty for the horrific crime of child rape, " Jindal said.
U.S. Sen. David Vitter, R-La., said he, too, was disappointed.
"The penalty of execution exists for the most heinous criminal offenses committed by individuals, and the rape of a child is undoubtedly such an offense, " he said.
Earlier coverage is here. My commentary on Kennedy v. Louisiana and Texas lawmakers is here. Earlier coverage of the case and ruling is here.
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