Kennedy v. Louisiana
554 U.S. 407 (2008)
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Rule of Law:
A court's Eighth Amendment analysis should not claim to rely on a 'national consensus' against a punishment when significant legislative evidence, such as a recent federal statute authorizing that punishment, directly contradicts that claim.
Facts:
- In a prior decision, the Supreme Court held that the Eighth Amendment prohibits the death penalty for the rape of a child where the victim does not die.
- The Court's reasoning relied in part on its determination that a 'national consensus' had developed against this punishment.
- After the Court issued its opinion, 85 Members of Congress brought to the Court's attention a 2006 federal statute.
- This statute, part of the Uniform Code of Military Justice, was passed by the Senate 95-0 and the House 374-41.
- The statute explicitly reauthorized the death penalty as a possible punishment for the rape of a child.
- This federal law was not cited by any party or amicus during the original case proceedings.
- Based on this new information, the state of Louisiana moved for a rehearing of the case.
Procedural Posture:
- Patrick Kennedy was convicted in a Louisiana state trial court for the aggravated rape of his child stepdaughter and was sentenced to death.
- The Louisiana Supreme Court, the state's highest court, affirmed the conviction and sentence.
- The U.S. Supreme Court granted a writ of certiorari.
- The U.S. Supreme Court reversed the judgment, holding in a 5-4 decision that the Eighth Amendment barred the death penalty for the crime of child rape.
- The respondent, the State of Louisiana, filed a petition for rehearing with the U.S. Supreme Court.
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Issue:
Does a recently discovered federal statute, which authorizes the death penalty for child rape under the Uniform Code of Military Justice, warrant a rehearing of a decision that found such a penalty unconstitutional for civilians based on a purported national consensus against it?
Opinions:
Statement respecting denial of rehearing - Scalia, J.
No, the discovery of the statute does not warrant a rehearing because the original majority's decision was ultimately based on its own subjective judgment, not on the objective evidence of a national consensus. Justice Scalia argues that while the 2006 military statute 'utterly destroys' the majority’s claim of a national consensus, rehearing is futile because the majority opinion explicitly stated that 'in the end our own judgment will be brought to bear' on the issue. He contends that this approach is contrary to the Constitution and that the new evidence of American opinion, though devastating to the majority's factual premise, would be 'irrelevant' to their ultimate conclusion, which was based on their personal views of what is an acceptable punishment.
Analysis:
This statement by Justice Scalia highlights a fundamental disagreement on the Court regarding Eighth Amendment jurisprudence. It forcefully critiques the 'evolving standards of decency' doctrine, arguing that the majority used the concept of a 'national consensus' as a pretext for substituting its own moral judgment for that of legislative bodies. While this statement did not change the outcome in Kennedy v. Louisiana, it serves as a powerful dissent to the majority's methodology and foreshadows future battles over whether the Eighth Amendment's meaning is fixed or should be interpreted according to the subjective views of judges.
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