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Supreme Court Revises, but Doesn't Reconsider Child Rape Case
Back in July, my colleague Bob Ambrogi posted about a blogger who picked up on a actual mistake in the Supreme Court's decision in Kennedy v. Louisiana, holding that the Constitution bars the death penalty for child rape. The Court grounded its ruling, in part on a survey of state and federal law noting that neither Congress nor 44 states had made child rape a capital client. Turned out, however, that the Court was wrong; in 2006, Congress amended the Uniform Code of Military Justice to add child rape to the military death penalty.
In light of this revelation, the Court was asked to reconsider its ruling. Today, SCOTUS Blog reports that the Court revised its decision to reflect the capital provisions in the Uniform Code, but otherwise, declined to reconsider or reverse its original ruling. Corey Yung at the Sex Crimes Blog and Orin Kerr at Volokh highlight the money quote from Scalia, who wrote the order denying rehearing:
I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's decision in this case.The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: "[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." Ante, at ___ (slip op., at 24). Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read "no criminal penalty shall be imposed which the Supreme Court deems unacceptable." But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.
As always, Scalia gets points for panache with his statement, but he also gets extra credit for adhering to principle. Since Scalia was in the dissent in the original Kennedy ruling, he could have attempted to use the request for rehearing as a way to get a second bite at the apple, and perhaps turn the decision to his favor. Instead, he resisted the opening, because of his belief that the views of Congress or the states on the acceptability of the death penalty in child rape cases do not bear analysis of its constitutionality.
Posted by Carolyn Elefant on October 1, 2008 at 04:20 PM | Permalink
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