Again, no action on death penalty ruling

By Lyle Denniston
on Sep 5, 2008 at 10:02 am

The Supreme Court issued its third and final round of summer recess orders on Friday, but the Justices announced no action on the plea to reconsider its ruling in Kennedy v. Louisiana (07-343), striking down the death penalty for the crime of child rape.  The state of Louisiana on July 11 asked the Court to reopen the case to consider the effect, if any, of the fact that the Court had overlooked a federal military law on that death sentencing issue.  The Justice Department has asked the Court to allow it to join Louisiana in its plea for rehearing. The Court did not act on that motion, either, on Friday. 

While action on the rehearing issue could come at any time, the next scheduled point for releasing orders is the week of Sept. 29, following the Court’s first private Conference of the new Term.  It is unclear whether the Court has yet actually focused on the rehearing request, since the Justices have been in summer recess.  They have acted on a list of other rehearing requests, but most of those appeared to be without significant legal impact; the Court rarely grants rehearings of decided cases. Kennedy v. Louisiana was decided by a 5-4 vote; to grant rehearing, five Justices — including at least one from that majority — would have to approve a rehearing petition.

Monday’s Orders List can be found here.

Among the items on the list, the Court agreed to allow the office of the U.S. Solicitor General to take part in oral argument in five cases to be heard in the new Term: Arizona v. Gant (07-542), Hedgpeth v. Pulido (07-544), 14 Penn Plaza v. Pyett (07-581), Kennedy v. DuPont Savings Plan Administrator (07-636), and Van de Kamp v. Goldstein (07-854).

Here in summary are the issues involved in each of those cases: Arizona v. Gant, police authority to search a vehicle following arrest of occupants, set to be heard Oct. 7; Hedgpeth v. Pulido [formerly titled Chrones v. Pulido], scope of structural error in general jury verdicts, argument on Oct. 15; 14 Penn Plaza v. Pyett, enforcement of arbitration clause in labor contract, not yet set for argument; Kennedy v. DuPont Savings Plan Administrator, surrender of divorced spouse’s claim to pension benefits, argument on Oct. 7, and Van de Camp v. Goldstein, legal immunity for supervisors of prosecutors at the trial level, argument on Nov. 5.

The Court, however, denied the Solicitor General’s office request to take part in oral argument in Locke v. Karass (07-610), a case scheduled to be heard on Oct. 6; the issue is whether workers who are not members of the union that represents them are exempt from paying dues to finance the union’s lawsuits.  The Court gave no explanation for turning down the Acting Solicitor General’s motion to participate and to hold divided argument in that case, but the group representing the non-union workers had opposed that motion. The National Right to Work Legal Defense Foundation argued that most of a friend-of-Court brief filed by the SG’s office took sides against the non-union position even though that brief was said not to be supporting either side. (The blog discussed that opposition in this post.)