Friday Focus: Supreme do-over?

September 26, 2008

The U.S. Supreme Court officially kicks off the October 2008 term Monday when the justices hold a private conference to consider taking up a number of cases. During the Court’s term, each Friday DC Dicta will take a closer look at a particular topic, case, or petition before the Court to examine the issues and blogosphere buzz around it.

Today’s topic is the petition before the Court to reconsider it’s ruling last term in Kennedy v. Louisiana, where the justices held that the death penalty can not be imposed for the offense of child rape.

As widely reported, the state of Louisiana is urging the Court to rehear the case because the first time around, all the parties involved – as well and the Court’s own law clerks – somehow overlooked a military law provision that allows the death penalty in cases of child rape. The Court had based its decision in Kennedy in part on the absence of other laws that make child rape a capital offense.

On Wednesday the last the briefs were filed in the case. As summarized by SCOTUSBlog’s Lyle Denniston, the reply brief from the state of Louisiana urged the Court not to reply simply upon its independent judgment, arguing that “that Congress and the state legislatures are entitled to their say, too.”

Corey Rayburn Yung, Assistant Professor of Law at John Marshall Law School, was not impressed by the latest brief. “The Louisiana brief is full of overstatements and fails to offer any middle ground,” he wrote on his Sex Crimes blog. “That is not surprising for a partisan brief. However, I think the state does its arguments a disservice by being so strident and ignoring weaknesses in its arguments.”

But military justice blog CAAFlog disagreed. “[T]he brief engages in nuance discussion of military law reflecting great familiarity with the system. In one passage sure to warm any military litigator’s heart, Louisiana reminds the Supremes that their predecessors on the bench relied in part on the UCMJ when deciding Miranda.”

Sentencing Law and Policy blogger Prof. Douglas Berman doesn’t think the Court is going to reinvent the wheel on this one. “I continue to predict that the Supreme Court will ultimately deal with all these issues through an amended opinion that adds discussion of military law, but does not change the sum or substance of the Kennedy ruling,” Berman wrote.  “But, then again, who knows what mischief might lie in the hearts of Justices in Kennedy.”