Reopening Kennedy v. Louisiana?

The Justice Department has made an extraordinary statement of regret for its handling of the case of Kennedy v. Louisiana, in which the Supreme Court last month ruled that the death penalty for non-homicide child rape was unconstitutional. As reported here in the New York Times, no one told the Court in briefing the case that under a law passed by Congress in 2006, child rape was made eligible for the death penalty under the Uniform Code of Military Justice. Since Justice Anthony Kennedy based the 5-4 ruling in part on the consensus of jurisdictions that do and don't call for the death penalty for child rape, the omission was significant. Following is the text of the statement issued Wednesday:

"We regret that the Department didn't catch the 2006 law when the case of Kennedy v. Louisiana was briefed. It's true that the parties to the case missed it, but it's our responsibility. Yesterday, shortly after learning of the law, we advised the Clerk's office at the Supreme Court. Only parties to a case may petition for rehearing. If a petition for rehearing is filed, the Department will review the petition and consider what steps are appropriate, including possibly seeking leave of the Court to provide our views on the petition for rehearing."

"Although no one has been sentenced to death for child rape under the law, we note with regard to the continued constitutionality of the law that the Supreme Court has not resolved the question whether its Eighth Amendment jurisprudence applies with equal force in the context of military capital punishment. Cf. Loving v. United States, 517 U.S. 748, 755 (1996)."

Why would the department say "it's our responsibility" to tell the Court about the statute, when the government did not even file a brief in the case? Jones Day partner Donald Ayer, a former principal deputy solicitor general, said in an interview today that "the government seems to be saying they had a dog in this fight and they did not realize it." One of the basic duties of the solicitor general's office is to defend the constitutionality of federal statutes (with rare exceptions), so if the military law regarding child rape was in jeopardy because of the Louisiana case, Ayer says, the office may well have filed a brief in the case if it had known about the law. "The idea that they had no interest in the case was an error. They may feel they were inattentive on their watch."

But Ayer thinks that in the end, it is highly unlikely that the Court will reconsider its decision even if Louisiana, armed with this new federal statute on its side, asks the Court to do so. "It would not be very seemly for the Court to suddenly go the other way just because one more twig is added to the pile," says Ayer. "My bet is that this will pass."