I wrote an article yesterday describing, among other things, that a major premise of the Supreme Court’s rationale (in Kennedy v. Louisiana) for invalidating Louisiana’s death penalty for child rape was wrong — specifically, there is no national “consensus” disfavoring capital sentencing for that crime. Neither the parties in the case nor the justices realized that, just two years ago, Congress passed a law approving the death penalty for rape under the Uniform Code of Military Justice.
Today the New York Times reports that the Justice Department has confessed error for not ensuring that the Court was aware of the 2006 federal law. (The United States was not a party to the case — a challenge to a state sentencing law — and the Solicitor General did not intervene even though DOJ typically files amicus briefs when important federal interests are at stake, as they were here.)
What is to be done? Well, Louisiana can file a motion for rehearing — Rule 44 of the Supreme Court Rules permit the filing of such a motion within 25 days of the Court’s decision. (It requires a yes-vote from only four justices for the Court to agree to hear a case on certiorari; I don’t know what the protocol is on the more unusual motion for rehearing. Maybe one of our stellar Supreme Court monitors over at Bench Memos knows?) The Times, in any event, reports that Louisiana Governor Bobby Jindal is actively involved in deciding next steps, and I imagine Attorney General Mukasey and Acting Solicitor General Greg Garre are as well.
Speaking of Bench Memos, Cornerites should read the invaluable Matt Franck’s memo from yesterday, assessing this situation. It homes in on what is most outrageous about the Kennedy decision. As I mention above, the “consensus” that was not really a consensus was a major premise of the ruling. It was not the only major premise. Matt elaborates (italics mine):
The citation of what legislatures have and haven’t done is just window dressing for the real ground of decision in these Eighth Amendment “evolving standards of decency” cases—namely, the impulses of the justices themselves. As Justice Kennedy put it, “objective evidence of contemporary values . . . does not end our inquiry. . . . We turn, then, to . . . our own understanding of the Constitution and the rights it secures.”
That’s the nub of it. The democratic choices of the people of a state, or of the country, are being brushed aside on nothing more than the say-so of five lawyers based on their “own understanding of the Constitution.” For my money, it would be worth moving for rehearing simply to demonstrate that the emperor has no clothes. There is no consensus, so let’s see if the five justices are actually willing to tell the people of Louisiana, much the way a parent tells a five-year-old who keeps asking why, “Because we said so.”
UPDATE: I’ve heard from Brothers Whelan (who weighed in from vacation) and Franck (who has a new Bench Memo regarding the latest developments). Both believe it would take the votes of five justices to rehear a case — in contrast to the four required to hear a case on certiorari review. Assuming, as I do, that this is correct, I don’t see Justice Kennedy or one of those who joined his opinion (Justices Stevens, Souter, Ginsburg or Breyer) admitting there should be a reconsideration of what they have wrought.