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Rehearing Denied in Kennedy v. Louisiana (Death Penalty and Child Rape)

October 1, 2008

There was a call from both left and right to have this case reheard. The call was based on Justic Kennedy’s assertoin that a majority of Americans are against putting child rapists to death.  That turnedo out to be blatantly false. Alito and Thomas voted for rehearing. Scalia has a great opinion:

I am voting against the petition for rehearing because 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.The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Ante, at ___ (slip op., at 24). 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.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.

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