Maybe it was Berman challenging Governor Jindal to keep to his word, but whatever the cause, Louisiana filed a motion for rehearing today in Kennedy. SCOTUSBlog has the details and the motion.
I'm still in light-blogging mode as I try to finish my article, but I had to read the motion. I'm still wholly unpersuaded by the significance of the UCMJ omission. If it was important, the state was free to bring it up in their original briefing. And the military has always operated by special rules (which is probably why they have never repealed a separate provision for the death penalty for rape of an adult woman after Coker). I love that they have to put the word "blog" in quotes to explain how the state found out about the UCMJ change. The key point for the rehearing motion requires the state to prove the very significant relevance of military law in evaluating national consensus. On that point, the argument seems quite poor. From the motion (all typos are mine):
This Court has looked to military law to interpret the Eighth Amendment since at least 1879. Wilkerson v. Utah, 99 U.S. 130, 133-35 (1879), contained an extensive discussion of military practice, citing not only the Articles of War but also military treatises. The discussion led the Court to conclude that "the authorities referred to are quite sufficient to show that the punishment of shooting" did not violate "the eighth amendment." Id. at 134-35. Later, Furman v. Georgia, 408 U.S. 238, 275 (1972) (Brennan, J., concurring) referred to the practice of "review[ing] various treatises on military law" when seeking societal trends.
While not an Eighth Amendment case, Loving ...
You can imagine that nothing good is coming after turning away from the 8th Amendment after just one paragraph. The brief does mention Coker, but not really in support of the proposition that the UCMJ matters. Missing from the brief is any "evolving standards of decency" case in which the UCMJ was included. Notably, the opinion in Coker was issued using the same methodology in Kennedy while ignoring a capital rape provision in the UCMJ. No decision has counted the UCMJ and but for one article by Linda Greenhouse, no one would have cared in this case either.
After reading the motion, this confirms my belief that this rehearing hubbub is much ado about nothing.
Update: Not surprisingly, SL&P is also covering the story. Berman points out the high profile lawyers, Viet Dinh and Neal Katyal, who authored the brief.