Legal Commentary

As reported here at SCOTUSblog, tomorrow "is the deadline to seek rehearing in Kennedy v. Louisiana (07-343), though there has been no indication the state of Louisiana will seek rehearing...."  I will be very disappointed if Louisiana does not petition for rehearing, especially given that, as detailed here, Governor Bobby Jindal has stated in this official press release that the Supreme Court "got this case wrong, plain and simple" and that he "will do everything [he] can to see that this decision does not stand."  I am hoping that Governor Jindal will stay true to his word and have his state at least ask the Justices for rehearing in Kennedy.

I am not sure that the Justices will or even should grant rehearing in Kennedy, but I am sure that there are lots of justifications for Louisiana filing a rehearing petition.  The Washington Post stressed in an editorial discussed here why the error the Kennedy decision made about federal law alone justifies rehearing:

The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That's why we think the court needs to reopen this case -- even though we supported its decision.... [T]his is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.

Moreover, as some commentary has highlighted, both major candidates for President disagreed with the Kennedy court's ruling, and recent poll data (discussed here at The Volokh Conspiracy) indicate that a significant majority of Americans support child rape being a death eligible crime.  In other words, the assertion that there is a national consensus againt capital child rape looks much worse now than it did just last month. 

Whether or not there is a reasonable chance that the Supreme Court grants rehearing and/or reconsiders the merits of its decision, I think it is very important for Governor Jindal to follow up his blustery court-bashing with an actual legal filing.  As I have suggested in this prior post, it would be sad and telling if Gov. Jindal's comments were only intended to score anti-SCOTUS political points and he does not have enough conviction in his own assertions to bring his complaints directly to the Court.  (Notably, Gov. Jindal's slogan on his official website is "I'm asking you to once again believe in Louisiana."  I will never again believe in him if he does not have his state petition for rehearing in Kennedy.)

Some related recent posts (from SL&P):

• Could all the mistakes in Kennedy be corrected?
• Washington Post editorial supports rehearing in Kennedy child rape case
• Is Louisiana working on its Kennedy rehearing petition? Will Gov. Jindal stay true to his word?
• The international dogs that did not bark in Kennedy
• A Reagan era irony in Senator McCain's recent judge-bashing
• Ineffective assistance (by prosecutors) in Kennedy child rape case?
• Some first-cut reactions to Justice Kennedy's work in Kennedy
• Culture of life trumps democracy and state experimentation in Kennedy
• Will (and can) "outraged" politicians really do anything about Kennedy?

Cross-posted at SL&P