Less than a week before its October term is set to begin, the US Supreme Court became a spectacle of sound and fury on Wednesday over a landmark decision handed down three months ago declaring that the death penalty for child rapists is cruel and unusual punishment.
At issue was whether the high court would revisit the landmark 5-to-4 decision after revelations last summer that contradicted the majority justices’ conclusion that a “national consensus” had emerged against the death penalty for the rape of a child.
The June 25 decision said only six states had laws authorizing capital punishment for child rape. But unknown to the justices at the time they wrote the opinion, Congress in 2006 had amended the nation’s military law to authorize capital punishment in such cases for child rapists. In 2007, President Bush issued an executive order concurring with the congressional action.
These actions were not discussed in the case briefs to the high court or at oral argument.
In light of the new information, the US Solicitor General’s Office and the state of Louisiana asked the court to rehear the case and take a fresh look at whether a “national consensus” had really formed against the practice.
The answer came on Wednesday. The author of the opinion, Justice Anthony Kennedy, and the four other members of the majority stood behind the landmark decision, agreeing only to amend the opinion with a footnote mentioning the congressional action.