It looks like "irregular blogging" turned into "no blogging" during my trip. It's the middle of the night in Scotland and I fly back to the States tomorrow. I have a lot to catch up on, but I just saw this and had to post right away. As noted by SCOTUSBlog, the USSC has asked for further briefing on the issue of whether it should rehear the Kennedy v. Louisiana case:
The Supreme Court on Monday called for new legal briefs on possible rehearing — and, maybe, revision — of its ruling striking down the death penalty for the crime of child rape. In an order in Kennedy v. Louisiana (found here), the Court sought briefs from lawyers for both sides in the case, as well as from the federal government. The new briefing in 07-343 is to be completed by Sept. 24 — in advance of the Court’s first Conference of the new Term, on Monday, Sept. 29.
The briefs are to discuss two issues, according to the order: first, whether to grant rehearing of the June 25 decision, and second, what action — if any — the Court should take if it does reopen the case. Here is the way the Court phrased its inquiries: “whether rehearing should be granted” and “the merits of the issue raised in the petition for rehearing” filed by the state of Louisiana on July 21.
That issue, of course, is whether the Court should modify or expand the substance of its ruling in the case because the decision did not take account of a federal law authorizing a death sentence for child rape as part of the military justice system. This embraces several other related issues: Will the Court rethink its conclusion that there is a “national consensus” against the penalty for that crime? Will it clarify whether one basis for its decision (the absence of a “national consensus”) was more important than the second basis (the Court’s independent view that the punishment was excessive for the crime)? Will it make clear whether rulings under the Eighth Amendment apply to the same degree in the military justice system as in civilian courts? Will it comment in any way on the constitutionality of the military justice provision for the death penalty for child rape?
As I continue to believe that the Court should not rehear the case and that the briefs arguing for rehearing were not at all persuasive, I will have much more to say about this in the coming days once I'm back in Chicago.
Not surprisingly, Doug Berman is already on the story.