Kennedy v. Louisiana

Background

Patrick Kennedy sought rehearing after the Court issued an opinion addressing application of the death penalty to child rape. After the opinion issued, opponents pointed out a 2006 federal law that permits the death sentence under the military code for rape of a minor; that law was not cited earlier and was called to the Court’s attention in a letter signed by 85 Members of Congress. The respondent argued that this new statute justified rehearing because it undercuts the majority’s claim of a national consensus against the death penalty for child rape.

Reasoning

Justice Scalia voted against rehearing. He explained that the majority’s original decision ultimately rested on the Court’s own judgment about what penalties are acceptable, not solely on a measured national consensus. He said the newly cited military statute and the President’s reauthorization of the military death penalty do not change his vote against rehearing, but they do undercut the majority’s claim that a nationwide consensus opposed capital punishment for child rape. He disputed two points made in Justice Kennedy’s statement: that the statute merely reclassified the offense, and that the Constitution might permit harsher military punishments than civilian ones.

Real world impact

Because rehearing was denied, the Court left the earlier opinion and its finding about national consensus intact for now. The existence of a federal military law authorizing the death penalty for child rape creates a tension between that law and the Court majority’s view. This raises questions about different treatment of civilians and military members for the same crime.

Dissents or concurrances

Justice Scalia’s brief statement, joined by the Chief Justice, objects to the majority’s reasoning and highlights congressional and presidential acts that, he says, contradict the claimed national consensus.