A Supreme Do-Over on Kennedy v. Louisiana?

Yesterday, the Washington Post called for the Supreme Court to reexamine its ban on the death penalty for child rape. This is badly needed and extremely unlikely.

But what if the Supreme Court not only blows a key fact but also bases its ruling, in part, on that error? There was quite a goof in the court's 5 to 4 decision on June 25 banning the death penalty for those who rape children. The majority determined that capital punishment for child rape was unconstitutional, in part because a national consensus had formed against it. As evidence, the court noted that "37 jurisdictions -- 36 States plus the Federal Government -- have the death penalty. [But] only six of those jurisdictions authorize the death penalty for rape of a child." Actually, only two years ago, Congress enacted a death penalty for soldiers who commit child rape, as part of an update to the Uniform Code of Military Justice (UCMJ). Irony of ironies: The court has cast doubt on the constitutionality of an act of Congress based on the erroneous claim that the statute did not exist.

The Kennedy case is embarrassing not only for factual errors, but for revealing just how unimpressive the justices get when they decide to apply constitutional criteria so meaningless as "evolving standards of decency" and "the Court's own judgment." These criteria could be used to either justify or ban almost any law based on nothing more than the whim of a majority of justices. As I wrote the day the decision was handed down, "The whole point of having a Constitution and precedential judgments is so that individuals and legislatures can predict with some success whether their actions will run afoul of the laws or Constitution. But when it comes to the Court's holdings on the Eighth Amendment, that goes right out the window." Even if I agreed that "evolving standards of decency" inform whether a punishment is cruel and unusual, "the Court's own judgment" is bound to change as often as its members.

Given such freedom within which to work, one would have expected the justices in the majority to at least pull together something believable to justify their conclusion. It is not too much to ask that they actually apply the loose standards which they adopted. Unfortunately, Justice Kennedy's opinion is simply a mess. As I wrote the day of the opinion, he latches onto any recent laws which limit the death penalty (as in the case of the mentally disabled) and uses it to claim a "national consensus" against the death penalty in general, despite the trend toward executing child rapists. So Justice Kennedy fudged the first criterion.

Last week it turned out that the parties, the justices, and the DoJ overlooked a recent federal law providing for the death penalty for soldiers who rape children. Kennedy's discussion of "evolving standards of decency," already weak given the trend and national feelings about capital punishment was substantially undermined. Now, everyone is talking about it. The D.C. gun ban case may have been the most anticipated decision of the term, but Kennedy has taken over the center ring.

That attention may accomplish more than the usual complaining after a contentious case. Typically, the justices can close the term, even if there is bad press and hard feelings, and pat themselves on the back for at least doing the best that they could. Nobody can say that when it comes to this case. Kennedy's name is on the opinion, which would now be a national joke if it wasn't so important. And the credibility of the Court itself is in question.

So what can they do? If Louisiana chooses, it can petition the Court to rehear the case. It would be, essentially, a do-over. Even if the justices were to come to the same conclusion (as I would expect, given "the Court's own judgment" criterion), they could write new opinions. Unfortunately, it takes five votes to rehear a case. Assuming the dissenting justices would want to, they would still need to convince at least one of the majority to join them in granting the petition. Justice Kennedy is the most obvious vote because his name is on the embarrassing opinion. But isn't it more likely that he will choose to let this slide, believing that the clamor will fade eventually?

posted by Gabriel Malor at 02:50 PM

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