The Justice Department, in a bold legal maneuver, on Monday afternoon asked the Supreme Court to rehear a major case on the death penalty, saying the basis of the decision had been “undermined.” The decision at issue was the 5-4 ruling on June 25 in Kennedy v. Louisiana (07-343), barring the death penalty for the crime of raping a child. The federal government was not involved in that case. Although the Court’s rules do not allow non-parties to ask that a case be reheard, the Solicitor General’s office filed a motion asking permission to do so, arguing that the Court should grant the state of Louisiana’s plea for rehearing. The motion can be found here.

“The United States,” Acting Solicitor General Gregory G. Garre argued in the motion, “has a substantial interest in rehearing because the Court’s decision casts grave doubt on the validity of a recent Act of Congress and Executive Order of the President authorizing capital punishment for child rapists under the Uniform Code of Military Justice”– the law that governs crimes committed by those in military service.

The motion is based primarily upon the fact that the Court, in striking down Louisiana’s law on the death sentence for child rape, did not take account of a federal law authorizing that penalty in the military justice system.  No one involved in the case had mentioned that law to the Court, and Justice Anthony M. Kennedy’s opinion for the majority noted the supposed absence of a federal law on the subject in a survey of whether there was a “national consensus” for or against such punishment.  The omission, discovered by a military law expert and mentioned on his blog, led Louisiana to ask formally that the case be reopened to consider the military law provision.

The Solicitor General’s office reacted earlier to the omission by saying that, if rehearing were sought, it would “consider what steps are appropriate.” On Monday, the answer came, one week after Louisiana asked for a new review.

The new motion contended: “The Court’s decision and, in particular, its assessment of the ‘national consensus with respect to the death penalty for child rapists’, was not informed by those recent pronouncements [of Congress and the President].”

Under the Court’s rules, a rehearing of a decided case can come about only if one of the Justices who voted with the majority supports rehearing, and there are five votes to do so. And, under the rules, the Court almost never will grant a new review of a decided case without first asking for a reaction from the other side — here, the lawyers for Patrick Kennedy, the Louisiana inmate involved.

While saying, as it had earlier, that it “regrets” not having brought those developments to the Court’s attention, the government filing said that the decision “rests on an erroneous and materially incomplete assessment of the ‘national consensus’ concerning capital punishment for child rape. That error undermines the foundation for the Court’s decision.”

Even if the Court were to reach the same result after a new look, the rehearing would have been justified “to ensure that a material omission in the decisionmaking process has not tainted the Court’s decision on a matter of such profound constitutional, moral, and practical importance.”

Moreover, the motion asserted, the Court should take the occasion of a rehearing to spell out further the relationship, if any, between the two rationales it used in ruling against a death sentence for raping a child. One rationale was the inquiry into a “national consensus” on the subject — the part of the opinion that omitted the federal military law.  The other rationale was the Court’s use of its own “independent judgment.”

The Court, the govecaernment motion said, “has not had occasion to illuminate the extent to which these two inquiries are interdependent.”  And, it went on, the Court has never used its “independent judgment” to forbid capital punishment “in the face of a national consensus” favoring such punishment — a consensus that the government suggests may in fact exist because of the federal actions and “a broader trend” in the country “recognizing the incalculable individual and societal harms inflicted by the sexual abuse of children.”

The Solicitor General sharply criticizes the Court’s ruling, especially its “categorical nature.” In discussing that facet of the government argument in a footnote, the motion noted that the Court has not yet decided whether rulings on the Eighth Amendment ban on cruel and unusual punishment apply differently in a military case involving a death sentence. But, because of the breadth of the decision last month, the motion said, it “casts grave doubt on the constitutionality” of the military law allowing a death penalty for child rape.

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