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Counting to five in the Kennedy rehearing debate

By Douglas A. Berman

The Kennedy rehearing petition is a very interesting read (basics here), especially if one keeps in mind the likelihood ? or should I say unlikelihood ? that five Justices will vote for rehearing. Here are a few completely uninformed speculations about the challenges I think Louisiana faces in getting another bite at the Kennedy apple. First, I think it is unlikely that Justice Stevens or the other three more liberal Justices will be eager to take up this case again. Justice Stevens has expressed his view that he now thinks the death penalty is unconstitutional in all cases, and I surmise that Justices Breyer, Ginsburg and Souter may all be moving in that direction. Second, though I think Justice Kennedy may be concerned and embarrassed about having his name on a prominent opinion that involves a notable mistake, I am not sure he will want to return a spotlight on these matters...continue to full post

Full post as published by Sentencing Law and Policy on July 23, 2008 (boomark / email).