The Supreme Court, issuing the first orders for the Term that opens formally next week, on Wednesday refused to rehear its ruling striking down the death penalty for the crime of child rape, but modified both the majority and dissenting opinions by adding a footnote to each. The result was that the Court left intact its decision, not only that a death sentence could not be imposed for that particular crime, but also that death could not be imposed for any crime in which the victim is not killed.I thought the Court should have reopened the case, as I wrote here, so I'm very disappointed. I'll say something more when I've read the opinions.
The Court’s modifying order in Kennedy v. Louisiana (07-343) was accompanied by two opinions. One was by Justice Anthony M. Kennedy, who wrote the original decision; his opinion was joined by the four Justices who supported that ruling on June 25. The other opinion was by Justice Antonin Scalia, writing for himself and Chief Justice John G. Roberts, Jr. — essentially, a response to Justice Kennedy’s new comments. Justice Samuel A. Alito, Jr., who had written the dissenting opinion from the original ruling, did not join any of the new opinions, but noted he would have granted rehearing of the case. Justice Clarence Thomas took the same position. (It would have taken the votes of five Justices, including at least one from the original majority, to grant rehearing.)
October 1, 2008