From SCOTUSBlog, the Court has modified both the majority and dissenting opinions in Kennedy v. Louisiana by adding footnotes to each opinion. The modifications can be seen here in the modified opinion. Footnote * of the majority opinion now reads:
When issued and announced on June 25, 2008, the Court’s decision neither noted nor discussed the military penalty for rape under the Uniform Code of Military Justice. See 10 U. S. C. §§856, 920; Manual for Courts-Martial, United States, Part IV, ¶45.f(1) (2008). In a petition for rehearing respondent argues that the military penalty bears on our consideration of the question in this case. For the reasons set forth in the statement respecting the denial of rehearing, post, p. ___, we find that the military penalty does not affect our reasoning or conclusions.
Footnote 6 of the dissenting opinion now reads:
Moreover, as noted in the petition for rehearing, the Uniform Code of Military Justice permits such a sentence. See 10 U. S. C. §856; Manual for Courts-Martial, United States, Part II, Ch. X, Rule 1004(c)(9) (2008); id., Part IV, ¶45.f(1).
As I've previously made clear, I think the decision to not rehear the case was the right one. Footnote * refers to a statement regarding a denial of rehearing. I haven't seen that statement yet, but hopefully it explains the Court's arguments for not rehearing in greater detail. Otherwise, all the briefing by the parties and the S.G. seems for naught. I will post the statement regarding rehearing here as soon as its available.
Update: Here is Justice Scalia's statement on rehearing. It is a bit interesting that Scalia authored this statement given that Justice Alito wrote the dissenting opinion. Only Justice Roberts joined Scalia on the rehearing statement. Justices Alito and Thomas would grant rehearing, but as I read it, they didn't join Scalia's statement. And here is the statement from the majority about rehearing. The statement also outlines the modifications made to the opinions (with an additional minor modification to the dissent). Here is a key portion of the majority's statement (which I think is exactly right):
In any event, authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context. The military death penalty for rape was in effect before the decisions in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), and Coker v. Georgia, 433 U. S. 584 (1977); and when the Court surveyed state and federal law in Coker, it made no mention of the military penalty. See id., at 595–596, 593, and n. 6 (plurality opinion) (not including the military as a “jurisdiction in the United States” that authorized the death penalty for rape, and naming the Federal Government among jurisdictions that recognized the death penalty for rape prior to Furman but citing only the nonmilitary provision). The same is true of more recent Eighth Amendment cases in the civilian context. See Enmund v. Florida, 458 U. S. 782, 789–793 (1982); Tison v. Arizona, 481 U. S. 137, 152–154 (1987).