Breaking News

Court modifies Kennedy death penalty opinion, grants 10 new cases

NOTE TO READERS:  The Court’s modified opinion in Kennedy v. Louisiana is now available on the Court’s website, at this link. This is the version that will appear in the United States Reports, the official record of the Court’s opinions.  The separate opinions released on Wednesday are also available on that website, at this link.)  Those separate opinions, explaining or commenting upon the denial of rehearing, will be reported in the U.S. Reports separately, as part of the Court’s “opinions related to orders.” The Court is expected, however, to insert a note with the modified opinion referring the reader to these opinions further back in the volume.


The Supreme Court, issuing the first orders for the Term that opens formally next week, on Wednesday refused to rehear its ruling striking down the death penalty for the crime of child rape, but modified both the majority and dissenting opinions by adding a footnote to each. The result was that the Court left intact its decision, not only that a death sentence could not be imposed for that particular crime, but also that death could not be imposed for any crime in which the victim is not killed.

The Court’s modifying order in Kennedy v. Louisiana (07-343) was accompanied by two opinions.  One was by Justice Anthony M. Kennedy, who wrote the original decision; his opinion was joined by the four Justices who supported that ruling on June 25.  The other opinion was by Justice Antonin Scalia, writing for himself and Chief Justice John G. Roberts, Jr. — essentially, a response to Justice Kennedy’s new comments.  Justice Samuel A. Alito, Jr., who had written the dissenting opinion from the original ruling, did not join any of the new opinions, but noted he would have granted rehearing of the case. Justice Clarence Thomas took the same position.  (It would have taken the votes of five Justices, including at least one from the original majority, to grant rehearing.)

The Court also added ten new cases to its decision docket for the year; most of these are likely to be heard in January or February. (All available certiorari-stage filings are available here.) Among those ten, seven involved issues of criminal law.  The other three cases raised issues about requiring all companies who had some role in dumping polluting wastes to pay the full costs of clean-up, when that liability could be split up among them (Burlington Northern v. U.S., 07-1601, and Shell Oil v. U.S., 07-1607, consolidated for briefing and argument),  about the federal government’s duty to help Indian tribes protect their mineral resources (U.S. v. Navajo Nation, 07-1410), and about the authority of the state of Hawaii to sell lands without resolving claims to that land by native Hawaiians (Hawaii v. Office of Hawaiian Affairs, 07-1372).

Among the new criminal cases is a test of the scope of the right to a speedy trial for a poor individual who is being represented by a public defender (Vermont v. Brillon, 08-88), a plea for the Court to clarify how federal appeals courts are to handle prosecutors’ violations of plea bargains when the violation was not challenged at the trial (the Court limited the grant in Puckett  v. U.S., 07-9712, to one of two issues raised), and a claim that a voluntary confession made after a suspect’s arrest on federal charges but before he appears before a magistrate must be suppressed when there was a delay before that appearance occurs (Corley v. U.S., 07-10441).

Other criminal law issues raised in newly granted cases test the proof required to show an enterprise under the RICO anti-racketeering law — an issue that arises in civil as well as criminal cases under RICO (Boyle v. U.S., 07-1309), the validity of using a damaging statement by a suspect to challenge the testimony he gives on the stand, if he had not waived his lawyer when he made the statement to police (Kansas v. Ventris, 07-1356), and the obligation of a suspect who has a court-appointed lawyer to take further action to prevent police from questioning him without his lawyer on hand (Montejo v. Louisiana, 07-1529).

The final criminal case added by the Court is Rivera v. Illinois (07-9995), contending that a conviction cannot stand if the defense counsel sought to exclude a juror by making a peremptory challenge, but the juror was seated anyway.  The appeal noted a split among the Circuit Courts on whether the conviction should be overturned automatically, or whether the error of wrongly seating the juror can be excused as “harmless.”

The Court took no action on a Georgia death-row inmate’s appeal seeking a ruling that it is unconstitutional to execute a convicted individual if there is substantial evidence that he did not commit the crime. The execution of Troy Anthony Davis is temporarily blocked by a stay the Court issued on Sept. 23.

The next chance for the Court to issue orders will be on Monday, the opening day of the new Term.