Still in Search of a Unifying Principle: What Kennedy v. Louisiana and the Supreme Court’s Denial of the State’s Petition for Rehearing Signal for the Future

Abstract

In Kennedy v. Louisiana, the Supreme Court struck down a Louisiana law that authorized the death penalty for the crime of child rape. The Court held, first, that 'there is a social consensus against capital punishment for the crime of child rape;' and, second, that in the Court’s own 'independent judgment' the penalty is disproportionate. Kennedy came under intense public scrutiny because a purported omission in the majority opinion was said to undermine the decision on its own terms. The State of Louisiana claimed that a recent change in military law invalidated the Court’s finding of a national consensus. It attempted to capitalize upon fresh media coverage and widespread confusion about the facts by filing a petition for rehearing with the Supreme Court. On October 1, 2008, the Court denied the request for a rehearing. This piece briefly explores: (I) the basis of the Court’s decision to reject the request for rehearing; and (II) the Kennedy decision’s implications for the Eighth Amendment’s future.

Keywords: Kennedy v. Louisiana, death penalty, rehearing, eighth amendment

JEL Classification: K14, K41