Supreme Court denies rehearing child rape case, but justices still spar

Today the U.S. Supreme Court declined to rehear the case in which the Court struck down the Louisiana statute that made child rape an offense punishable by death. But even in agreeing not to rehear the matter, Justice Antonin Scalia issued a statement blasting members of the Court’s majority in the case.

The case, Kennedy v. Louisiana, drew attention after the discovery of a little-known 2006 military law that made child rape a capital offense. Neither party in the case realized the law existed when the argued before the Court, and Court based its decision striking down the law in part on the absence of tradition of making child rape a capital offense.

Last month the Court asked parties in the case to file supplemental briefs “addressing not only whether rehearing should be granted but also the merits of the issue raised in the petition for rehearing.”

The court did issue a modified opinion in the case, which can be found here.

In a statement regarding the modification and the denial of rehearing, the Court indicated that Justices Clarence Thomas and Samuel Alito, Jr. voted in favor or reviewing the case.

Justice Anthony Kennedy, author of the opinion, noted in today’s statement that although military rules allowing the death penalty for rape have been in place for more than a century, “[t]he death penalty, however, has not been carried out against a military offender for almost 50 years.” Kennedy added that the 2006 law’s “authorization of the death penalty in the military sphere [for child rape] does not indicate that the penalty is constitutional in the civilian context.” Kennedy’s statement was joined by the other four justices who made up the 5-4 majority in the case last term.

In a separate statement, Justice Antonin Scalia, joined by Chief Justice John G. Roberts, Jr., noted that he voted against rehearing the case “because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.”

But Scalia derided the majority’s “lack of consensus” rationale as merely a way to “giv[e] effect to the majority’s own preference.”

As for Kennedy’s distinction between military law and civilian law, Scalia wrote: “It is difficult to imagine . . . how rape of a child could sometimes be deserving of death for a soldier but never for a civilian.”

The court also granted certiorari in 10 cases, ranging from Fifth Amendment rights of indigent defendants to liability under CERCLA for environmental cleanup costs. The order list can be found here. More coverage of those grants will be coming up later on this blog and on the Lawyers USA website.


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