The state of Louisiana and attorneys for Patrick Kennedy have filed petitions arguing whether or not the Court should rehear the landmark death penalty case as a result of research oversight. The original petition for rehearing can be found here. You can find the Petitioner’s brief in opposition of rehearing here, the Respondent’s brief in favor here, and the US Solicitor General’s amicus brief here.The Court held in its original opinion that issuing the death penalty for the rape of a child constituted excessive punishment partially and based at least a sliver of its argument on the fact that there had been a national concensus establishing the principle already.
Earlier this summer is was revealed that part of a broad appropriations bill contained language making the death penalty an appropriate punishment for the rape of a child in military proceedings. The error was first spotted by Dwight Sullivan in a post on his blog, CAAFlog. Eugene Fidell, a lawer and husband of Linda Greenhouse, the famed New York Times Supreme Court reporter, discovered the blog post and told his wife about it. She wrote an article about it that would later appear above-the-fold on the New York Times and the rest, as they say, is history.
Supporters of the death penalty argue that this action by Congress shows that there is, in fact, a clearly established concensus on the national level favoring the use of the death penalty for these crimes. The argue that the Court has always acknowledged that they play a role in interpretting the Constitution and that Congress interpretted the Constitution to allow the death penalty in this case should influence the Court’s decision.
Opponents of rehearing have argued that this revelation attacks only half of the court’s overall argument and is a weak attack at that. As Kennedy’s brief argues, if the Court had been notified of the legislation, “it might have warranted a footnote in this Court’s opinion.” The Supreme Court also has the option of rejecting the recent revelation on the principle that it is now too late in the appellate process to bring up a new argument.
The biggest obstacle facing Louisiana is the fact that they have to convince at least one member of the Kennedy majority to vote in favor of rehearing. A petition for rehearing must be approved by five justices meaning one of the justices who originally voted with the majority opinion would have to vote in favor of rehearing the case and would presumably be interested in changing their vote on the case.
The Court will sit for its first conference of OT08 on Monday, September 29th and they will likely release a long list of accepted cases on the 30th. Kennedy may be among those or it may later be dismissed unceremoniously in an order’s list later in the coming weeks.