The Supreme Court on Monday called for new legal briefs on possible rehearing — and, maybe, revision — of its ruling striking down the death penalty for the crime of child rape.  In an order in Kennedy v. Louisiana (found here), the Court sought briefs from lawyers for both sides in the case, as well as from the federal government.  The new briefing in 07-343 is to be completed by Sept. 24 — in advance of the Court’s first Conference of the new Term, on Monday, Sept. 29.

The briefs are to discuss two issues, according to the order: first, whether to grant rehearing of the June 25 decision, and second, what action — if any — the Court should take if it does reopen the case.  Here is the way the Court phrased its inquiries: “whether rehearing should be granted” and “the merits of the issue raised in the petition for rehearing” filed by the state of Louisiana on July 21.

That issue, of course, is whether the Court should modify or expand the substance of its ruling in the case because the decision did not take account of a federal law authorizing a death sentence for child rape as part of the military justice system.  This embraces several other related issues: Will the Court rethink its conclusion that there is a “national consensus” against the penalty for that crime? Will it clarify whether one basis for its decision (the absence of a “national consensus”) was more important than the second basis (the Court’s independent view that the punishment was excessive for the crime)? Will it make clear whether rulings under the Eighth Amendment apply to the same degree in the military justice system as in civilian courts? Will it comment in any way on the constitutionality of the military justice provision for the death penalty for child rape?

In Monday’s order, the Justices sought a supplemental brief of up to 4,500 words from attorneys for Patrick Kennedy, the death-row inmate at the center of the case, with that brief due on Sept. 17.  The U.S. Solicitor General’s office is to file a brief of up to 2,500 words, due at the same time, on the federal government’s views.  The state of Louisiana is to file a brief of up to 4,500 words, dealing not only with its plea for rehearing, but also “the merits of the issue raised in the petition for rehearing.”  That final brief is due Sept. 24.

Under the Court’s Rules, a decided case will not be reheard unless a majority of the Court votes to do so, and the majority includes at least one Justice who voted for the result in the case.  Since the Kennedy case was decided by a 5-4 vote, at least one of those in the majority of five would have to cast a vote for rehearing.

Louisiana, with the support of the Solicitor General’s office, has contended that the Court’s decision was flawed because of the omission of any reference to a provision enacted by Congress in a Pentagon budget bill two years ago.  Both Louisiana and the Solicitor General’s office have said it was an error for them not to bring that law to the Court’s attention but that, nevertheless, the Court should reopen the case and consider now what impact, if any, that might have on the result.

In the Court’s decision, the Court first made a survey of trends in state legislatures, in Congress, and in the courts — a survey leading to the conclusion that there was a national consensus against the penalty for the crime.   In that part of the Court opinion, Justice Anthony M. Kennedy wrote that there was no federal law directly on point.

That is the part of the ruling that Louisiana and the federal government have attacked most aggressively.

In the second part of the decision, the Court, exercising what it called its own “independent judgment,” concluded that the death penalty would not be proportional for the crime of raping a child.  In its rehearing petition, Louisiana said that the Court did not “quantify which factor, if any, predominated” in reaching its result — national consensus, or the Court’s “independent judgment.”

If the existence of the military provision “calls into question the national consensus found by this Court,” Louisiana added, “the question arises whether the second factor, standing alone, justifies an Eighth Amendment holding that supplants the will of not only the several States, but of the Federal Government as well.”

The “independent judgment” part of the decision, Louisiana added, “was not fully informed” because the Court “was not presented with all of the evidence of recent legislative enactments.”

The Solicitor General’s office, in asking the Court on July 28 to allow it to file a brief supporting rehearing, said that the Kennedy decision “is grounded on a materially erroneous understanding of federal law. Contrary to statements in the opinion, both Congress and the President have recently determined that a maximum sentence of death is appropriate and proportionate for casesinvolving the extraordinariliy grave crime of child rape.”

The Solicitor’s prepared brief suggested that “the categorical nature of the Court’s decision is particularly problematic.”  It noted that the Court “has yet to resolve whether the Eighth Amendment’s prohibition” applies differently in military capital cases.  But the Kennedy decision rules out “across the board” the death penalty for child rape.  That raised “grave doubt” about the validity of the 2006 law, the brief added.

Before Monday, the Court had taken no action on the Solicitor’s motion to allow the government to file a brief on rehearing — a brief that does not appear to be allowed under the Court’s Rules. But Monday’s order extending the invitation to the Solicitor to file a new brief makes the motion irrelevant now.
 

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