Perhaps the most well-respected name in constitutional law has joined the calls for a Kennedy rehearing. It's in the Wall Street Journal and here is the key portion:
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.
When Tribe writes about constitutional law, you have to take what he writes quite seriously. However, since he is writing in the WSJ, there are no legal citations included and I am not sure to what he is referring. As I've previously noted, the Supreme Court has never taken notice of military practice (even when it was certainly relevant as in Coker) in any of its 8th Amendment evolving standards of decency cases. If not for Linda Greenhouse's little article, the decision in Kennedy would join the rest of the cases that omitted references to military policy. So, I'm really not sure why someone "would be hard pressed to accept that view of the military/civilian distinction." Based upon the S.G. and Louisiana briefs, it seems that both were "hard pressed" to find any precedent that the military has been included in any relevant 8th Amendment case.
My suspicion is that Tribe normatively opposes the military's exclusive status in many constitutional cases. And perhaps that normative judgment is what is taking hold in his editorial. Berman, who still has the blogging bug on his vacation, chimed in to support the Tribe editorial as he continues to support a rehearing:
Though Tribe seems more troubled by the result in Kennedy than by the Court's factual errors (as am I), adding his voice to the call for rehearing in Kennedy strike me as quite important. So, to review, we now have the state of Louisiana (represented by prominent law professors from both sides of the political aisle), the US Government, the Washington Post editorial page, and Tribe all asserting that the Justices ought to take up the Kennedy case again. (Also, though not directly addressing the rehearing issue, both major Presidential candidates and a number of other prominent politicians also have suggested the Justices messed up In Kennedy).
The hamonic consensus calling for rehearing in Kennedy reinforce a point I have made from the outset of the post-Kennedy debate: the Supreme Court's legitimacy, and not just the outcome in one high-profile case, is at stake in how it handles the rehearing question in Kennedy.
I agree with Berman that this issue has come to be something that questions the Court's legitimacy. However, I just don't think it should have come to this point. There are plenty of people who disagree with the Court's ruling and I understand that view. However, the use of the military citation omission to support unrelated opposition just strikes me as political opportunism (not by Berman and Tribe - but by the various media outlets who continue to harp on the case).