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Court to Consider Kennedy Rehearing:

The Supreme Court has issued an order requesting briefing on whether it should rehear Kennedy v. Louisiana, the case in which the Court held the death penalty to be an unconstitutional punishment for the crime of child rape. The basis for rehearing would be the Court's reliance upon the lack of a federal law providing for capital punishment for child rape as evidence for the existence of an emerging "national consensus" on the issue when, in fact, such a federal law actually existed (and had been adopted relatively recently). The Court's decision to seek briefing on the question of rehearing is heartening news, as I believe the Supreme Court needs to rehear the case if for no other reason than to restore the Court's tarnished credibility.

SCOTUSBlog has more here. Our prior posts on the possibility of rehearing in this case are here and here.

J. Aldridge:
Since the court is fundamentally challenged with comprehending basic word structures under the 14th amendment, I do not see them suddenly getting anything right here.
9.9.2008 9:33am
Redlands (mail):
I always wondered about the pernicious "evolving standards of decency that mark the progress of a maturing society," and what would prevent those standards from swinging in the opposite direction, resulting in a wider application of the death penalty. Kennedy v. Louisiana answered my question. You just stop the pendulum from swinging, set it where you want it, or at least in such a way that it will swing only in the direction you desire, and voila, standards continue to "evolve."
It's amusing that the court may revisit Kennedy to tidy it up. Since no one expects the ultimate outcome to change, is there any good reason to bother?
9.9.2008 9:46am
A.W. (mail):
Interesting... my impression is this shows an unusual openness to reconsideration. Here's crossing fingers and hoping they will reconsider it and this time either 1) come out the right way (allowing states to decide this for themselves), or 2) at least come up with a non-laughable majority opinion.

But I'm not holding my breath. and Kennedy is never off the hook as far as i am concerned. He can pretend all he wants, but he is not a jurist; he is a superlegislator. And yes, that is true even when he comes out the right way. You can be right for the wrong reasons.
9.9.2008 9:46am
Jeff Lebowski (mail):
IANAL, but my gut feeling is that they will, as A.W. puts it, come up with a non-laughable majority opinion.

Personally, I think it should be up to the states to decide if they want this kind of law on their books. However, I also believe that the Court will still come out the same way. I don't see Justice Kennedy changing his overall position.
9.9.2008 10:32am
Prosecutorial Indiscretion:
Given the polling data showing a substantial majority of Americans favor the death penalty for child rapists, and the fact that both major presidential candidates criticized the outcome in Kennedy, it seems particularly difficult for the Court to reissue an opinion relying on the same vague idea that Louisiana's law runs counter to the national standards of decency. If the Court, upon reconsideration, doesn't do a better job of justifying their desired result, they should expect another wave of exceedingly harsh criticism exposing the fundamental lawlessness of their behavior.
9.9.2008 10:46am
A.W. (mail):
Prosecutorial

That just shows you how laughable this entire consensus thing is. So if Obama said "I always hate the DP," then it is legal? How is that even law, as we come to understand the term?

My view is a little radical. I say we cut it way back to a few extreme punishments. And I know people will say "you mean you will allow _____." But really, I don't see very much support in the states to do the really awful stuff. I really don't understand this reflexive last of trust in the stats on this subject.
9.9.2008 10:58am
PLR:
If anything, judging by the 2004 presidential election, there is more of a consensus that killing people is cool. The more we kill, the more impressed we are with ourselves and the essential humanity with which we dispense justice.
9.9.2008 11:41am
John C. Calhoun:
I strongly support capital punishment (and have for decades) for the crime of murder. Because I view a death sentence as the "ultimate punishment," I believe it ought to be reserved for the "ultimate crime," i.e., taking a human life. Hence, I think it is inappropriate to mete out a death sentence in a case in which the victim is not killed.

At the same time, I recognize that my preference is actually a policy choice and is not an outcome dictated by any provision of the Constitution. So I've been torn-----I like the result of Kennedy v. Louisiana, but I think the reasoning and methodology the Court employed to reach my favored result is seriously flawed.

Perhaps there simply IS no principled way under the Constitution and related caselaw to reach my desired result.
9.9.2008 12:37pm
The Cabbage (mail):
as I believe the Supreme Court needs to rehear the case if for no other reason than to restore the Court's tarnished credibility.

Prof. Kerr, do you think there is any chance in a blue moon that Justice Kennedy will change his mind on either the outcome or the reasoning? I'm asking what you see in the tea leaves.
9.9.2008 12:53pm
The Cabbage (mail):
errr... Can I re-hear the previous post in order to get the Conspirator's name right?
9.9.2008 12:54pm
Angus:
Does anyone think the founding fathers would have asked the general population what was cruel and unusual, or would the founding fathers have assumed that judges selected from the political and intellectual elite would decide? I find it strange that the debate is over "popular opinion" as a way of interpreting the constitution.
9.9.2008 12:58pm
p. rich (mail) (www):
"The Court" did not screw up. A very specific set of liberal justices did, again, or we would not be having this conversation.
9.9.2008 1:31pm
A.W. (mail):
John Calhoun

Well, we may not agree on the death penalty, but we agree on more important stuff.

Let me add this as fuel for your own thoughts. Treason is a capital offense, and has been repeatedly upheld as one. And treason doesn't necessarily result in anyone getting killed.

I think to me that is the most damning point. Look, I am not a fan of Benedict Arnold. My patriot heart hates him for stabbing his nation in the back just when we needed him.

But you compare that to the man in this case, who raped his 8-year-old daughter so violently that it ruptured the walls between her vagina and anus... as much as I despise Benedict Arnold, I think any rational person says the defendant in Kennedy is worse, and more deserving of death. Maybe you would feel neither would deserve death, and that is a rational choice even if I disagree, but I don't see how the court in Kennedy couldn't even explain how it was that Benedict Arnold could be executed, and the daughter-raping defendant couldn't be.

The Cabbage

> errr... Can I re-hear the previous post in order to get the Conspirator's name right?

Hey we all have moments like that. Look at Barack Obama saying McCain hadn't attacked "my Muslim faith." By the way, my pet theory is he really meant to say "my Muslim name" and said face instead of name.

So you are in good company.
9.9.2008 1:32pm
Sarcastro (www):
Conservatives never screw up, only liberals. And Kennedy, the King Liberal of them all, can't get anything right! Why didn't those Justices to more independant research, instead of relying on the briefs? Typical Liberal laziness, if you ask me!

When Conservatives write the opinion, we never have any conversations about it, because their decisions are so obviously right no one dares contratict the Truth of the opinion.
9.9.2008 1:35pm
Bored Lawyer:


Hence, I think it is inappropriate to mete out a death sentence in a case in which the victim is not killed.

. . .

At the same time, I recognize that my preference is actually a policy choice and is not an outcome dictated by any provision of the Constitution.

. . .

Perhaps there simply IS no principled way under the Constitution and related caselaw to reach my desired result.


Sure there is. Its called the democratic process. Speak out, make your opinion known, and try to convince your fellow citizens and the legislators about the wisdom and moral correctness of your policy preferences.
9.9.2008 2:12pm
A.W. (mail):
Sarcastro

Notice, you can't actually refute any of these points we make. You can only snark in the corner, demolishing straw men.

Kennedy's opinion has to be one of the worst-written I have ever read from a Supreme Court justice, with gaping holes in its logic he doesn't even attempt to plug. For instance, why is treason a capital offense, but not raping your own daughter? You will search in vain in the opinion for any attempt to address that very logical argument. That is only one example of how poorly written the opinion is.

All the snarking in the world won't change those facts.
9.9.2008 2:31pm
Sarcastro (www):
A.W. I try to poke at the absurdity of the extremists, using satire to point it out. My straw man is more a voodoo doll, with all the elements of the extreme post present, but taken to their logical extreme.

I was responding to the one-sidedness of p. rich's pithy post.

This is actually a very civilized discussion considering Kennedy and Kennedy are involved. Likely one of the side effects of the Palin threads attracting all the really partisan people.
9.9.2008 2:45pm
PLR:
Sarcastro, notice, you can't actually refute any of these points we make. You can only snark in the corner, demolishing straw men.

Sarcastro has chosen a method of communication that does not entail direct rebuttals. Whether he is capable of a direct rebuttal is moot, though I think the evidence as a whole suggests that he is capable.

Otherwise, I'm comfortable letting your 12:32 and 1:31 posts speak for themselves.
9.9.2008 2:49pm
John C. Calhoun:

Perhaps there simply IS no principled way under the Constitution and related caselaw to reach my desired result.





Sure there is. Its called the democratic process. Speak out, make your opinion known, and try to convince your fellow citizens and the legislators about the wisdom and moral correctness of your policy preferences.


Bored Lawyer,

You are correct. I wasn't clear. What I meant to say was:

"Perhaps there simply IS no principled way under the Constitution and related caselaw to judicially reach my desired result."

The way to do it is legislatively, as you suggest.
9.9.2008 2:50pm
Ak Mike (mail):
A.W. - I also disagree with your assertion that this child rapist was worse than Benedict Arnold. I have noticed that many seem to believe that sadists and criminals who inflict pain personally are worse than those who inflict far greater suffering but do it remotely. Thus I remember a conversation with a lawyer who thought that the killer who inspired Megan's law was worse than Timothy McVeigh, even though McVeigh had killed dozens of children among others, because the lawyer was so repelled by the image of strangling a small child.

Benedict Arnold's crime resulted in the deaths of scores or hundreds of American soldiers. He did it by betrayal, far from the scene, by giving information to the enemy in comfortable surroundings. This to my thinking is far more evil than even if he had killed every one of those soldiers personally, and certainly far worse than the admittedly horrible crime of child rape.

I think that whether child rape is a capital offense should be a matter for legislatures rather than courts - but treason is a worse crime by far.
9.9.2008 3:06pm
Deoxy (mail):
So, if a state passed a law right quick (say, before their review of Kennedy) allowing the death penalty for child rape, that would pretty well put the kibosh on the whole "evolving standards" thing.

And, if they use some other logic to come up with the same answer (which they most assuredly would), would more people at least realize that they just look for ways to get what they already want?

Our nine black-robed tyrants may have finally screwed up badly enough to get some real attention.

Of course, they did that in Kelo, and nothing happened, so I don't suppose I should be optimistic about it...
9.9.2008 3:44pm
A.W. (mail):
AK Mike

I think our disagreement is merely a different understanding of history. There might even be some ignorance on my part. I was a history major, but I focused on the Civil War era, and know less about revolutionary times. But my understanding is this. Arnold wanted to give West Point to the British. His plot was discovered and he ran for the British and defected. I don't believe he had any useful intelligence to give them, thus I don't see how he caused anyone's death. Maybe I am wrong in my factual understanding, but I hope you see I am not excusing murder for being remote; I didn't think he caused the death of a single American in his treachery.

But you are absolutely right that remotely caused death is just as bad as personally shooting a person. So given my understanding of the facts, here is how I rank them in terms of how richly they deserve death: McVeigh first, the defendant Kennedy second, and then Arnold. But that is in part based on the facts I laid out above and in any case I favor killing them all.

I was using that as a short hand way of saying that the Supreme Court doesn't require a traitor to kill anyone before the death penalty is applied. If I am wrong about those facts with Arnold, well, then take the example of a man who merely defects to the other side during war. Yep, he's scum and should die. But the father who violently raped his own daughter in Kennedy seems to be worse to me. And I would rather have that defector live (in prison) and the rapist die, than the other way around.

Of course, the very next day, the Supreme Court came out with the heller decision, guaranteeing a right to bear arms, which many people felt made the decision in Kennedy moot. :-)
9.9.2008 4:05pm
good strategy (mail):
As a matter of policy, executing child rapists is a terrible idea because it encourages said rapists to kill their victim. The law is political grandstanding.

As a matter of law, I'm agnostic. Re-hear the case. While we are at it, maybe revisit the contrived 6 month statute of limitations on filing sex discrimination lawsuits.

I do find the majoritarian arguments on moral issues to be ironic given the framer's undeniable elitism when it came to trusting the people at large to understand issues of justice.
9.10.2008 1:14am
Handed Learn:

Our nine black-robed tyrants may have finally screwed up badly enough to get some real attention.

Of course, they did that in Kelo, and nothing happened, so I don't suppose I should be optimistic about it...


Remember that, just as in this case, the justices were split 5-4 in Kelo, too. At least four of them had it right.
9.10.2008 2:53pm