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The Latest in Kennedy

By "Milbarge" and "Fitz-Hume"

Via SCOTUSBlog, news comes today that the Supreme Court has issued an order in the child rape death penalty case Kennedy v. Louisiana. The state of Louisiana has sought rehearing based on a factual error in the opinion. It argues that this error undermines the majority's reasoning. The Solicitor General has come out in favor of granting the rehearing petition. Prof. Berman at his sentencing blog and Prof. Yung at the Sex Crimes blog are covering this development as well.

I have written about Kennedy a few times -- here and here and here. I have been critical of the SG's position in the case, specifically its attempt to join the rehearing petition as an amicus despite a clear Supreme Court rule prohibiting rehearing-stage amici. Instead, I noted that 28 U.S.C. sec. 2403 would seem to allow the United States to intervene as a party to the case. In essence, I argued that the SG should go all-in or stay out, and not try this half-way dance it's doing now.

At the risk of being proven wrong, I'll guess that today's order -- which calls for briefing both on the necessity of granting rehearing and the merits of the petition -- is something of a compromise. My thinking is that some members of the Court are unwilling to substantively amend the opinion without a formal grant of rehearing, even if that doesn't lead to new briefs and argument. Others probably don't think that's necessary, and others probably want to drag the whole thing back for the full plenary treatment. This procedure allows Kennedy's lawyers to weigh in. By rule, no responses to rehearing petitions are allowed unless called for by the Court, and the Court virtually never grants rehearing without seeking a response.

I think this order lets the Court ruminate a bit more. I think it also makes a grant of rehearing much more likely, although I still don't think the final outcome will change.

Full post as published by Begging the Question on September 09, 2008 (boomark / email).