The Supreme Court today did the right thing and issued an order inviting the parties to argue that Kennedy v. Louisiana was wrongly decided. This is the case from the end of the term in which the justices held, 5-4, that the death penalty may not be imposed for child rape that does not result in homicide. As noted here (among other places), the majority purported to find a national consensus against the death penalty in such circumstances, notwithstanding a recent federal law permitting it.
The order doesn’t mean the case will be overturned (I’m betting it won’t), but at least the Court will
rehear consider rehearing it. And without a national consensus to rely on, they’ll be left to argue that the death penalty is illegal because … five justices say so.
UPDATE: Our Bench Memos bud, Matt Franck, provides an important correction. The Court has not at this point agreed to rehear the case. It has ordered Kennedy’s counsel to respond to Louisiana’s petition for rehearing, and to address the merits assuming rehearing is granted. The chances that rehearing will occur have increased, but no final decision to rehear the case has been made at this time. Thanks to Matt, and I apologize for the confusion.