Supreme Court refuses to recondider flawed decision

Washington Post:

The Supreme Court today declined to revisit its June decision that it is unconstitutional to impose the death penalty on child rapists, although two justices said they would have reopened the case and two others sharply criticized the majority.

The state of Louisiana and the Justice Department had asked the court to reconsider the 5 to 4 decision because the court was not made aware of what they consider a crucial element: that Congress in 2006 made child rape a capital offense under military law.

No one presented that fact -- it seems none of the parties knew at the time that it existed -- when the court said in June that there was no evidence of a national consensus in favor of putting child rapists to death. The court also found that in its "independent judgment," child rape could not be compared to murder in terms of warranting the death penalty.

Today, the same five justices said the opinion would be amended to reflect the existence of the military law, but that it did not bear upon their reasoning.

The military law that "retains the death penalty for rape of a child or an adult when committed by a member of the military does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional," wrote Justice Anthony M. Kennedy, author of the original decision.

...

"The views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's decision in this case," Scalia said. "The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down" to its own judgment that the death penalty is too severe a punishment for a crime that does not result in death.

Scalia continued: "Of course, the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.' "

...

This demonstrates the sophistry of the original decision and their results oriented decision. They are trying to rationalize that bad decision by ignoring a fact that directly refutes their reasoning. It is one of the most shameless acts I have seen by the court. Scalia gets it right.