As expected, the Supreme Court this morning declined to rehear its controversial June ruling in Kennedy v. Louisiana, which invalidated the death penalty for child rapists whose victims survive. Louisiana petitioned the Court for a rehearing this summer, after a military law blogger pointed out that Congress had passed a law in 2006 allowing the death penalty for child rapists under military law. The omission of that fact in all the briefs filed in the case skewed the Court's analysis of the national consensus on the issue, Louisiana argued.
But today, in its first orders list following its end-of-summer long conference on Monday, the Court denied the state's petition by a 7-2 vote, with Justices Clarence Thomas and Samuel Alito Jr. dissenting. In addition, Justice Antonin Scalia, joined by Chief Justice John Roberts Jr., issued a bitter statement that joins the majority only because, as Scalia put it, "the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's opinion in the case." But Scalia goes on to make clear that he thinks the new piece of information completely undermines the June decision. "While the new evidence... is ultimately irrelevant to the majority's decision, let there be no doubt that it utterly destroys the majority's claim to be discerning a national consensus and not just giving effect to the majority's own preference."
Justice Anthony Kennedy, who wrote the original majority opinion, wrote today 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, today 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."