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July 23, 2008

Counting to five in the Kennedy rehearing debate

The Kennedy rehearing petition is a very interesting read (basics here), especially if one keeps in mind the likelihood — or should I say unlikelihood — that five Justices will vote for rehearing. Here are a few completely uninformed speculations about the challenges I think Louisiana faces in getting another bite at the Kennedy apple.

First, I think it is unlikely that Justice Stevens or the other three more liberal Justices will be eager to take up this case again. Justice Stevens has expressed his view that he now thinks the death penalty is unconstitutional in all cases, and I surmise that Justices Breyer, Ginsburg and Souter may all be moving in that direction.

Second, though I think Justice Kennedy may be concerned and embarrassed about having his name on a prominent opinion that involves a notable mistake, I am not sure he will want to return a spotlight on these matters.  Notably, circuit courts frequently make amendments, without having reargument, to important opinions when petitions for rehearing spotlight flaws. I do not know if the Supreme Court ever has or ever would take this approach, but it might be Justice Kennedy's preference.

Third, I am not sure any of the dissenters in Kennedy really want to return to this battle.  They may know that the outcome is unlikely to change, and the Chief and/or other might be disinclined to have a lot of child rape sound and fury signifying nothing.  Of course, if the Chief or others think the integrity of the Court is at issue, they may urge and vote for rehearing nonetheless.

Again, these are all rank speculations, and I'd be interested to hear others' views and thoughts.

July 23, 2008 at 09:38 AM | Permalink

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» Child Rape, the Death Penalty, and the Military from Crime and Consequences
Louisiana's rehearing petition in the Supreme Court case continues to prompt much discussion. Our post on the original decision is here. SCOTUSblog has the petition for rehearing here. Doug Berman's latest SLP post, with a link to the prior one,... [Read More]

Tracked on Jul 23, 2008 5:54:13 PM

Comments

Doug:

You are, unfortunately, correct. None of the four liberals is going to vote for rehearing, and Kennedy is too heavily invested in his words to eat them now. He was really on his high horse on this one.

I expect a revised opinion to the effect that the new information, while relevant, is insufficient to alter the majority's conclusion that there is a public consensus against the DP for child rape -- this despite the fact that, if the Quinipac poll is even close to being correct, such an assertion by the Court would be false.

(And also putting to one side the fact that where two shrewd and successful national politicians like Obama and McCain agree the DP should be available for child rape, the chances that the country is actually against it are zilch).

Posted by: Bill Otis | Jul 23, 2008 11:02:54 AM

"politicians like Obama and McCain agree the DP should be available for child rape"

I may be wrong, but I don't beleive it's accurate to say that Obama supports the death penalty for child rape. I don't think he would actively say or do anything to correct the misperception but I believe his words convey only that he believes the Constitution does not bar a state from executing child rapists.

"I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution."

Posted by: John | Jul 23, 2008 11:32:00 AM

How can you describe Justice Kennedy's opinion as containing a mistake. He didn't say "The military does not have the death penalty for rape." He said:

Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain non-homicide offenses; but it did not do the same for child rape or abuse.

This is a correct statement of fact and law. That Kennedy found the Uniform Code of Military Justice irrelevant to the civilian application of the eighth amendment might annoy Dwight Sullivan and Linda Greenhouse, but its not an error.

The only legal error I could see here is in Kaytal's claim that the military application of the death penalty for child rape is of a 'recent vintage' when its been around since at least the civil war.

Posted by: anon | Jul 23, 2008 11:45:53 AM

John:

The AP report on Obama's reaction to the Court's decision quotes him as having said this as well: "While the evidence tells me that the death penalty does little to deter crime, I believe there are some crimes _ mass murder, the rape and murder of a child _ so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment."

This, taken together with the fact that a Supreme Court decision the other way -- which is what Obama said he wanted -- would have effectively sent the rapist to the death chamber, suggests to me, although it may not prove 100%, that Obama at the minimum does not oppose the DP for child rape.

Posted by: Bill Otis | Jul 23, 2008 11:54:53 AM

Anon, you probably missed it (I had to read it twice to catch this admission that their entire theory is bogus), but yes, Louisiana's petition does admit that the death penalty for rape in military law dates back to the Civil War (and military law still provides for the death penalty for the rape of an adult victim as well). They obviously did not highlight it, since it disproves their entire theory (especially given the nature of the law as a 300+ page long defense reauthorization and appropriations bill).

Obviously, all the Supremes need to do to fix any alleged "error" is to add a footnote saying that they are not deciding on the Constitutionality of the death penalty for non-homicide crimes in military law cases.

Posted by: Zack | Jul 23, 2008 2:22:03 PM

Why are you guys so concerned about whether Obama gives some trite slogan to the little people about the DP for child rape. For one, the president doesn’t really have that much to do with the practice of killing people for for child rape. I think it is fairly unlikely that the president would be asked to sign a military death warrant for child rape, or sign legislation providing the federal government with the power to kill people that raped children in national parks.

But, while we are on the topic, why don’t we ask both candidates whether they would sign death warrants for American soldiers that were duly convicted. There are some military “death penalty” cases working their way up, and the next president might be faced with the decision of whether to order the killing of an American solider. Somehow none of the ideologues on here never seem to want to ask this question. But, Professor Berman, I think you SHOULD ask this question.

Finally, perhaps you people are trying to say that the next president will appoint judges that have prejudged the merits of cases involving the killing someone for child rape. Maybe you folks should name SPECIFIC potential SCOTUS justices and then we can ask them whether they have prejudged the matter.

Posted by: Sr.cotus | Jul 23, 2008 4:45:37 PM

Zack -- you may have correctly characterized the pleading; i'll spend some more time looking at it. but "recent vintage" was a pure quote.

perhaps a scholar could look at the language of the request for rehearing, and determine that it was written by two different people; one attempting to characterize the facts in the best possible light, and the other saying whatever was necessary to try and get traction.

my favorite part of the debacle is Bobby Jindal's press release -- he is studying the opinion to determine how the statute can be amended in order to preserve the death penalty for this type of offense. . . . the ship on that one, Mr. Jindal, sailed some time before the opinion came back.

Doesn't Professor Berman have a class on that?

Posted by: anon. | Jul 23, 2008 6:08:18 PM

Actually, I do have a way a lot of DP statutes could be amended to deal with the SCOTUS’ recent nose-counting 8th amendment jurisprudence: increase the size of juries. If juries truly reflected community values as a whole, then it would be much harder to argue that a killing-statute violates the 8th.

Obviously, the prosecution would not be entitled to exclude people on their basis of their feelings about the death penalty. Likewise, Batson challenges would have to have teeth. But, I am pretty sure that if there was a 2,000 person jury, that was fully informed about the way the state was going to kill this guy, then the Supreme Would have a harder time deeming the death penalty unconstitutional.

Posted by: S.cotus | Jul 24, 2008 1:31:13 PM

"Actually, I do have a way a lot of DP statutes could be amended to deal with the SCOTUS’ recent nose-counting 8th amendment jurisprudence: increase the size of juries. If juries truly reflected community values as a whole, then it would be much harder to argue that a killing-statute violates the 8th.

Obviously, the prosecution would not be entitled to exclude people on their basis of their feelings about the death penalty. Likewise, Batson challenges would have to have teeth. But, I am pretty sure that if there was a 2,000 person jury, that was fully informed about the way the state was going to kill this guy, then the Supreme Would have a harder time deeming the death penalty unconstitutional."

Beware of signs that say hidden driveways

Posted by: federalist | Jul 24, 2008 1:55:15 PM

>>Beware of signs that say hidden driveways

No wonder why we don’t let lay people run things. Look at they way they think.

Posted by: Sr.cotus | Jul 24, 2008 3:09:43 PM

"No wonder why we don’t let lay people run things. Look at they way they think."

The lawn may be green but you better not be seen

Posted by: federalist | Jul 24, 2008 3:38:40 PM

"No wonder why we don’t let lay people run things. Look at they way they think."

The lawn may be green but you better not be seen

Posted by: federalist | Jul 24, 2008 3:40:07 PM

Sorry. I don't speak lay-babble, nor do I think it should be taught in the schools.

Posted by: S.cotus | Jul 24, 2008 11:59:19 PM

"Sorry. I don't speak lay-babble, nor do I think it should be taught in the schools."

Don't let the chlorine in your eyes blind you to the awful surprise

Posted by: federalist | Jul 25, 2008 1:21:40 PM

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