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Kennedy v Louisiana: Two Justices Accuse Five Others of Deceit...

When the Supreme Court denied Louisiana's rehearing petition in Kennedy v. Louisiana, where the court had previously invalidated that state's death penalty for child rapists, the 7-2 decision was striking. For two Justices who had previously dissented joined the majority with a concurring opinion stating, in effect, that the emperor was not wearing any clothes.

Louisiana had petitioned the Court for a rehearing this summer, after a military law blogger pointed out that Congress had passed a law in 2006 allowing the death penalty for child rapists under military law. The omission of that fact in every single one of the briefs filed in the case, and the fact that none of the Justices' clerks had found the statute, made a mockery of Justice Kennedy's majority opinion that there was a well-known "national consensus" against executing anyone whose victim had survived.

The Court denied the petition to rehear by a 7-2 vote, with Justices Thomas and Alito. dissenting. Most delicious was Justices Scalia's,and Chief Justice Roberts' concurrence: the two joined the majority only because, as Scalia put it, "the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's opinion in the case."

The concurrence makes clear that the new piece of information undermines the logic of the majority's decision. "While the new evidence ... is ultimately irrelevant to the majority's decision, let there be no doubt that it utterly destroys the majority's claim to be discerning a national consensus and not just giving effect to the majority's own preference."

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.