Kennedy v Louisiana Rumblings

While the Supreme Court had struck down execution of child rapists as unconstitutional this past June in the case Kennedy v. Louisiana, in the interim it was discovered that all the parties involved completely overlooked a federal statute that permitted this penalty through the military justice system.

This past Monday, the Court asked for new briefs so that they may consider a rehearing. From SCOTUSBlog:

The briefs are to discuss two issues, according to the order: first, whether to grant rehearing of the June 25 decision, and second, what action — if any — the Court should take if it does reopen the case. Here is the way the Court phrased its inquiries: “whether rehearing should be granted” and “the merits of the issue raised in the petition for rehearing” filed by the state of Louisiana on July 21.

That issue, of course, is whether the Court should modify or expand the substance of its ruling in the case because the decision did not take account of a federal law authorizing a death sentence for child rape as part of the military justice system. This embraces several other related issues: Will the Court rethink its conclusion that there is a “national consensus” against the penalty for that crime? Will it clarify whether one basis for its decision (the absence of a “national consensus”) was more important than the second basis (the Court’s independent view that the punishment was excessive for the crime)? Will it make clear whether rulings under the Eighth Amendment apply to the same degree in the military justice system as in civilian courts? Will it comment in any way on the constitutionality of the military justice provision for the death penalty for child rape?

As always, excellent questions but no answers for a while.

Jonothan Adler at Volokh Consipiracy weighs in:

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.

Doug Berman at Sentencing Law and Policy has a number of posts that track the progression of this case up to this point.