The Supreme Court has announced it will not rehear its controversial June decision of Kennedy v. Louisiana that child rapists cannot sit on death row. Today's announcement should not come as welcome news to both presidential candidates who were critical of 5-4 opinion authored by Justice Anthony Kennedy. That opinion was based in part on what Justice Kennedy called a "national consensus" on not making a capital punishment sentence available to child rapists. In the opinion he incorrectly said federal law did not provide for such punishment — when in fact it does in military courts.

Today's announcement from the Court is a 7-2 decision with Justices Clarence Thomas and Samuel Alito voting to grant the petition for rehearing. Justice Antonin Scalia — joined by Chief Justice John Roberts — penned a statement explaining his vote against the petition. Scalia writes that the consideration of national consensus or what the American people believe is "irrelevant to the majority's decision in this case." He goes on to blast the original June decision noting that "[w]hile the new evidence of American opinion is ultimately irrelevant to the majority's decision, let there be no doubt that it utterly destroys the majority's claim to be discerning a national consensus and not just giving effect to the majority's own preference."

The only change to the June opinion is the addition of a footnote which takes into account the federal law permitting child rape. That footnote concludes "that the military penalty does not affect our reasoning or conclusions." Justice Kennedy wrote a statement — joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — that said rehearing is not warranted in part because "authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context." Kennedy further concludes that considerable weight is afforded to the laws of the vast majority of states and federal criminal law which do not allow for capital punishment for this crime.

Background on the Case (Sept. 23, 2008)

Both major presidential candidates have been thrust back into the spotlight of a controversial Supreme Court decision that keeps convicted child rapists off of death row. Today, Louisiana submitted to the High Court its supplemental brief asking the Court to reconsider and review its June 25 decision. Included as appendices to that brief, a pair of press releases from Senators John McCain and Barack Obama highly critical of the Court's 5-4 decision.

On Monday, the nine justices will meet behind closed doors and discuss whether to hear again Kennedy v. Louisiana that invalidated the Pelican States law permitting death sentences for child rapists. The ruling also moved Patrick Kennedy, a convicted child rapist, off of that state's death row. The opinion authored by Justice Anthony Kennedy (no relation) drew condemnation from many including Senators McCain and Obama. But the opinion also found support from anti-death penalty quarters.

As the case was under consideration by the High Court, the Government through the Solicitor General's office nor any of the participants in the case made note of a recent change in federal military law that authorizes the execution of convicted child rapists. The opinion incorrectly stated that federal military statutes did not provide for such a sentence. Justice Kennedy used this incorrect fact as one part of his overall assessment that a national consensus had been formed prohibiting execution as an appropriate punishment for child rapists. This discrepancy has turned into a minor embarrassment for the Court and the Solicitor General's office, as it appears if the Court made a ruling in an important and controversial case without the full possession of the facts.

Shortly after the error came to light, Louisiana filed its petition for rehearing. And over its summer recess, the Court asked for additional briefs from all parties to fully consider the matter. Louisiana's brief filed today is the last one expected in the case and an announcement from the Court could come as early as next Monday. Five of the Court's nine justices would have to vote for the re-do which means that at least one of the justices in the narrow majority would have to decide that the case merits further review. Rehearings of already decides cases are extremely rare. It isn't immediately clear when the last one was granted but it may have been as long ago as the early 1960's.

In its brief, lawyers for Louisiana argue rehearing and ultimately a change in decision are necessary because "this course of action will respect, not pretermit, the continuing development of 'evolving standards of decency.'" The state also argues that any move towards national consensus in the area is towards the permissibility of death sentences for child rapists. It cites the new 2006 law passed by Congress and other similar legislation in the states. "The Constitution's commitment to democratic solutions and our federal system favors rehearing."

Louisiana is joined by the Bush Administration, which contends the June ruling is overly broad and that "[r]ehearing is warranted to ensure that a decision of such constitutional, moral, and practical consequence is not undermined by a significant omission in the Court's decision making process."

But in response, lawyers for Patrick Kennedy argue the reach of the opinion is narrow enough to be legally sound and that rehearing is not necessary. They contend the Uniform Code of Military Justice law that was changed in the 2006 National Defense Authorization Act (NDAA) did nothing more than reaffirm existing language. And they contend "[m]ilitary law...is immaterial to this Court's assessment of whether a national consensus exists against a state's imposing the death penalty for a certain crime."

Kennedy's lawyers also question the national consensus argument Louisiana flips from the June opinion. "Lest there be any doubt that the NDAA and ensuing amendments to the Manual for Courts-Martial were non-events, neither the State, its amici, the Solicitor General, nor a single person in the White House or Congress mentioned military law while this case was under submission. If the NDAA had triggered a change in federal law to reflect a supposedly evolving national consensus in favor of executing child rapists, one would have expected at least someone in federal or state government to have been aware of it."