If you’re a critic of the Supreme Court’s opinion in Kennedy v. Louisiana — as I am — and you think the Supreme Court would very likely reach the same result if they grant rehearing — as I do — wouldn’t you rather the Court deny the petition for rehearing?
Here’s my thinking. If the Court denies rehearing, the precedential value of the decision will be at least slightly tarnished for the future. The argument will be left open in a future case that the Court was wrong because it missed the military law. On the other hand, if the Court grants rehearing and reaches the same result, then not only is the precedent strengthened but the law’s ability to cabin the Justices’ policy preferences is weakened. Remember, the notion of head-counting is supposed to limit judicial discretion, at least a bit: The idea is that it makes it harder for the Justices to just vote their preferences because the head count provides some objective evidence. The limit is weak, to be sure, as cases like Kennedy and Roper suggest. But isn’t a weak limit better than a weaker one — or even no limit at all?
In his update below, Jonathan suggests that an amended opinion reaching the same result would be an improvement because it would be more honest. But if you’re a critic of the decision, isn’t a bit of dishonesty preferable? In a precedent-based system, it’s usually better to lose in a questionable decision than to have the door really slammed in your face. At least that’s the case unless you think the slamming door would cause such uproar that the Justices would feel intense pressure to take a different path. But, for better or worse, I doubt that’s very likely here.