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The National Consensus on Capital Punishment for Child Rape:

Andrew Hyman sends along the results from this interesting national Qunnipiac poll on various legal issues. Of particular interest, the poll asked the following question:

"The Supreme Court has recently ruled that a mandatory death penalty for child rape is unconstitutional. Do you favor or oppose the death penalty for persons convicted of child rape?"
Here are the results:
Favor: 55 percent
Oppose: 38 percent
DK/No Opinion: 7 percent
This would seem to further undermine Justice Kennedy's claim in Kennedy v. Louisiana that there is a national consensus opposing the death penalty for child rape.

The poll also has interesting results on other issues, ranigng from gun control and gay marriage to abortion and Chief Justice John Roberts.

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Kennedy Petition for Reconsideration:

Louisiana has filed a petition for reconsideration in Kennedy v. Louisiana. Details here.

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SG Seeks Kennedy Rehearing:

The Solicitor General's office has joined the state of Louisiana in requesting reconsideration of the Supreme Court's decision in Kennedy v. Louisiana, in which the Court held the death penalty for child rape to be unconstitutional. This is particularly interesting because the SG did not participate in the case initially, as the office had overlooked the fact that the constitutionality of a federal law -- in particular a provision of the UCMJ providing for the death penalty in cases of child rape -- could be affected by the Court's decision. Lyle Denniston has more details and a link to the motin at SCOTUSBlog here.

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Tribe on Kennedy v. Louisiana:

Harvard law professor Laurence Tribe has an interesting article in today's WSJ on the Supreme Court's decision invalidating the death penalty for child rape and its potential reconsideration by the Court. Here's a taste:

Emphasizing the evolving character of what constitutes an "unusual" if not an unduly "cruel" punishment, the court rested its condemnation of executing the rapists of children largely on what it described as a trend away from the use of death to punish such crimes both here and abroad.

But there was a problem with the court's understanding of the basic facts. It failed to take into account — because nobody involved in the case had noticed — that in 2006 no less an authority than Congress, in the National Defense Authorization Act, had prescribed capital punishment as a penalty available for the rape of a child by someone in the military.

Defenders of the court's decision in Kennedy v. Louisiana would have it ignore that embarrassing wrinkle by treating the military as a parallel universe that simply does not intersect civilian justice on the plane of constitutional principle. But a court searching for universal principles of justice in the name of the Eighth Amendment would be hard pressed to accept that view of the military/civilian distinction. Particularly when the court's division tracks the usual liberal/conservative divide, its credibility depends on both candor and correctness when it comes to the factual predicates of its rulings.

At this point, I think even those who support the original ruling recognize the need for the Court to reconsider its Kennedy decision, even if only to correct the record, and make explicit the actual basis for the Court's decision.

UPDATE: Why "correct the record" if the outcome of the case would be the same? I can think of several reasons. Among other things, the Supreme Court's decision is binding on lower courts, so it is important that its analysis is based upon a correct statement of the law. Furthermore, if (as many suspect) the purported existence of a "national consensus" on the death penalty for child rape had little to do with the Court's holding, the Court should say so, particularly now that the factual basis for the "national consensus" argument has been undermined. If the law of the land is that those punishments that a majority of the Supreme Court finds objectionable or disproportionate when imposed for certain crimes, then the Court should make that clear.

At Bench Memos, Ed Whelan has additional thoughts on Tribe's op-ed, particularly Tribe's . . . um . . . interesting suggestion that the Kennedy opinion could raise equal protection issues.

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Question About Rehearing in Kennedy v. Louisiana: 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.
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