Yesterday the state of Louisiana filed a petition for rehearing in Kennedy v. Louisiana, the 5-4 decision (which I’ve discussed in several posts, including here and here) in which the Court ruled that imposition of the death penalty for the crime of raping a child violates the Eighth Amendment. The basis for the petition for rehearing is the Court’s failure, in discerning a supposed “national consensus against capital punishment for the crime of child rape,” to take account of a federal law enacted in 2006 that authorized the death penalty for child rape in military courts. (Matt discussed this a few weeks ago.) The Court had instead mistakenly stated that federal law does not authorize the death penalty for child rape.
I’d like to highlight a few aspects of the rehearing petition:
1. Louisiana was wise and fortunate to retain Georgetown law professor Neal Kumar Katyal as counsel of record on the rehearing petition. Katyal is a former clerk to Justice Breyer and a former DOJ official in the Clinton administration, and he represented Guantanamo detainee Salim Ahmed Hamdan in the 2006 case of Hamdan v. Rumsfeld. According to this New York Times article, here’s how Katyal explained his decision to handle the rehearing petition:
I am personally opposed to the death penalty, but I am also opposed to courts taking fundamental decisions away from American voters…. Since the Supreme Court’s decision came down, new evidence has emerged that the justices may have been too quick to identify a national consensus in this case, so when the State of Louisiana gave me the chance to help, I was happy to accept.
Bravo, Professor Katyal!
2. The rehearing petition forthrightly acknowledges Louisiana’s mistake in failing to make the Court aware of the 2006 law in its prior briefing. But it correctly states that Louisiana’s mistake “should neither inhibit the Court’s work nor diminish its fealty to the Constitution.” Stated somewhat differently, the meaning that the Court imputes to the Constitution should not rest on error.
3. The rehearing petition documents that the change effected by the 2006 law was “deliberate and premeditated,” was supported by a Department of Defense report that, among other things, discussed Louisiana’s child-rape law, was highlighted to Congress, and was implemented by an executive order and by amendments to the rules governing courts-martial.
The rehearing petition ought to be granted, but of course the lawless decision in Kennedy v. Louisiana ought never have been rendered in the first place. I adhere to my guess that Justice Kennedy will make only the most minor tweaks to his opinion.