An evolutionary mistake

In Kennedy v. Louisiana this past June, the Supreme Court struck down the death penalty enacted by six states for child rape. I wrote briefly about the Court’s decision in “Our robed masters strike again” and in “Anthony Kennedy’s song of himself.”

One of the two grounds on which the Court’s 5-4 majority held Louisiana’s death penalty to be unconstitutional was the Court’s perception of a national consensus that capital punishment is to be employed only in cases of murder. Justice Kennedy observed that while 37 jurisdictions — 36 states plus the federal government — have the death penalty, only six states authorize it for child rape. The Court also held that capital punishment was disproportionate to the offense of child rape under the Court’s perception of an evolving standard of decency.

The Supreme Court’s death penalty jurisprudence is absurd to begin with, but the Supreme Court added an unusual factual error to the mix in Kennedy. After the decision, thanks to the commentary of a knowledgeable observer, it was noted that only two years ago, as part of an update to the Uniform Code of Military Justice, Congress enacted a death penalty for soldiers who commit child rape.

The existence of this federal statute by itself significantly undercuts the Court’s reasoning in Kennedy. Moreover, as the Washington Post observed in an editorial earlier this month, it appears that the Court’s decision invalidates an act of Congress based on the erroneous claim that the statute did not exist. Terry Eastland notes that the state of Louisiana has now petitioned the Supreme Court to rehear the case on account of its factual error:

Louisiana’s petition points out that the change in federal law was “deliberate and premeditated.” The Pentagon, in a report it prepared on sex crimes including child rape, discussed the Louisiana statute and attached it as an appendix. The legislation in which the capital child-rape provision was enacted passed both houses of Congress and was presented to the president, who signed it. It is, like all other federal laws, an expression of the nation’s, and not just a state’s, democratic will. And it is a plain and very recent expression. A question for the Court would be whether, in light of the federal statute, it could still believe there is, as Kennedy put it, “a national consensus against capital punishment for the crime of child rape.”

What is to be done? The Court should obviously rehear the case and take account of the federal statute. If it does so, Eastland writes, perhaps the justices can tell us whether they read their own decision in Kennedy as it can only be read: as invalidating the federal statute they didn’t know about.

UPDATE: Patterico adds that the Department of Justice has also petitioned the Supreme Court to rehear the case. On the result-oriented legal gymnastics of Justice Kennedy’s opinion in Kennedy, see Ralph Rossum’s excellent IBD column “Who better to reflect consensus: Elected Congress or divided Court?”

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