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September 22, 2008

What will (or should) SCOTUS do on the Kennedy rehearing petition?

Among lots of good new stuff at StandDown Texas Project is this interesting op-ed from Peter Verniero, who served as a New Jersey Supreme Court justice and state attorney general, on the Kennedy child rape case.  The piece is headlined "To maintain its integrity, the court must own up," and here is how it starts and ends:

There is something almost sacrosanct about recitations of law contained in decisions of the U.S. Supreme Court.  Lower-court judges, attorneys, law professors and everyday citizens depend on those statements in myriad ways even when disagreeing with the court's conclusions. If for no other reason than that, the court should reconsider and correct an opinion it filed at the end of its last term, Kennedy vs. Louisiana....

[H]ow one feels about the death penalty is irrelevant to whether the high court should reconsider its Louisiana decision.  At stake is not a policy debate but the reputation of the judiciary.  If court decisions are to retain legitimacy in a free society, they must be based on accurate readings of the law. From that perspective, unless or until it is corrected, the Louisiana opinion will suffer under a cloud of doubt....  Whether the court ultimately reverses its decision will depend on the court's evaluation of a correct survey of the law. Until that happens, we will be left wondering whether its divided Louisiana ruling is entitled to respect based on an accurate review of the law or merely because the court decreed it to be so.

It is unclear whether the author of this op-ed would be content if the Justices just amend the Kennedy opinion by adding a footnote discussing the (lack of) impact of military law on the analysis.  I suspect that the adding of such a footnote through an amended opinion is all that the Supreme Court will ultimately do in response to Louisiana's rehearing position.  And perhaps this is all the Court should do, since the flaw of the decision does not rest in its failure to discuss military child rape law, but rather in five Justices' clear desire to use constitutional doctrine to block any expansion of the death penalty in American states. 

In short, as I have explained in prior posts noted below, I consider the Kennedy decision to be misguided as a matter of constitutional law and policy.  But, unless someone in the Kennedy majority is prepared to reconsider more fundamental aspect of this recent ruling, I doubt that the military law kerfuffle should (or will) change the outcome.

So, dear readers, after I have here reiterated my Kennedy views and predictions, what do you think SCOTUS will (or should) do in response to Louisiana's rehearing position?

Some related posts the Kennedy ruling and a possible rehearing:

September 22, 2008 at 02:20 PM | Permalink


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Peter Verniero recently had this to say:There is something almost sacrosanct about recitations of law contained in decisions of the U.S. Supreme Court. Lower-court judges, attorneys, law professors and everyday citizens depend on those statements in my... [Read More]

Tracked on Sep 23, 2008 10:09:41 PM


I have mixed emotions about Kennedy. Unlike you, I don't believe the death penalty for child rape is wise policy. I support the constitutionality of the death penalty in general, but I think that in order to maintain the loyalty of rational citizens it needs to be used sparingly and with extreme caution.

In short, I agree with the policy outcome of Kennedy even if I remain doubtful that the death penalty for child rape really is unconstitutional per se. Certainly, I will say that the case Kennedy makes is not persuasive to me, although I am open to other grounds than those articulated by the court for ruling it unconstitutional.

At this stage, however, I don't think the court should do anything. If it wants to amend the ruling with a footnote, that's ok. But there is nothing in the briefs for a rehearing that should cause the justices to change their minds. If they did, I would find that the most disturbing ruling of all.

Posted by: Daniel | Sep 22, 2008 3:35:39 PM

I am split on what the court will do. On one hand I think the court probably will just drop a footnote and amend the opinion where needed to address the military's position and call it a day. On the other hand, perhaps one of the justices has had some time to really think about the opinion and someone has been in their ear about the intentions of states to make child rape death eligible with a SCOTUS opinion upholding the penalty. I think they will simply drop a footnote.

Posted by: Jordan | Sep 24, 2008 9:16:26 AM

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