Post Calls for Kennedy Rehearing:

On Saturday, the Washington Post called for the Supreme Court to rehear its decision in Kennedy v.Louisiana holding unconstitutional the death penalty for child rape.

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 Post notes that the various parties failed to identify the recently enacted UCMJ provision, so it does not place all the blame on the Court. The SG's office and the various parties were asleep at the switch -- as was the mainstream media, which only picked up the story after a blogger noted the mistake.

The Post supported the Court's Kennedy decision, but argues rehearing is necessary for the Court's crediblity. As the Post's editors explain, "The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations." Even if the Court reaches the same result, it should not mischaracterize federal law.