Kennedy v. Louisiana

Cite as: 554 U. S. ____ (2008) 1
Statement of SCALIA, J.
SUPREME COURT OF THE UNITED STATES
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No. 07–343
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PATRICK KENNEDY, PETITIONER v. LOUISIANA
ON PETITION FOR REHEARING
[October 1, 2008]
Statement of JUSTICE SCALIA, with whom THE CHIEF
JUSTICE joins, respecting the denial of rehearing.
Respondent has moved for rehearing of this case be-
cause there has come to light a federal statute enacted in
2006 permitting the death sentence under the Uniform
Code of Military Justice for rape of a minor. See Pub L.
109–163, §552(b)(1), 119 Stat. 3263. This provision was
not cited by either party, nor by any of the numerous
amici in the case; it was first brought to the Court’s atten-
tion after the opinion had issued, in a letter signed by 85
Members of Congress. Respondent asserts that rehearing
is justified because this statute calls into question the
majority opinion’s conclusion that there is a national
consensus against capital punishment for rape of a child.
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 major-
ity’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 judg-
ment will be brought to bear on the question of the accept-
ability of the death penalty under the Eighth Amend-
ment.” Ante, at ___ (slip op., at 24). Of course the
Constitution contemplates no such thing; the proposed
2 KENNEDY v. LOUISIANA
Statement of SCALIA, J.
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.
While the new evidence of American opinion is ulti-
mately irrelevant to the majority’s decision, let there be no
doubt that it utterly destroys the majority’s claim to be
discerning a national consensus and not just giving effect
to the majority’s own preference. As noted in the letter
from Members of Congress, the bill providing the death
penalty for child rape passed the Senate 95–0; it passed
the House 374–41, with the votes of a majority of each
State’s delegation; and was signed by the President.
JUSTICE KENNEDY’s statement posits two reasons why this
act by Congress proves nothing about the national consen-
sus regarding permissible penalties for child rape. First,
it claims the statute merely “reclassif[ied]” the offense of
child rape. Ante, at 2. But the law did more than that; it
specifically established (as it would have to do) the penalty
for the new offense of child rape—and that penalty was
death: “For an offense under subsection (a) (rape) or sub-
section (b) (rape of a child), death or such other punish-
ment as a court-martial may direct.” §552(b)(1), 119 Stat.
3263 (emphasis added). By separate executive order, the
President later expressly reauthorized the death penalty
as a punishment for child rape. Exec. Order No. 13447, 72
Fed. Reg. 56214 (2007). Based on these acts, there is
infinitely more reason to think that Congress and the
President made a judgment regarding the appropriateness
of the death penalty for child rape than there is to think
that the many non-enacting state legislatures upon which
the majority relies did so—especially since it was widely
believed that Coker took the capital-punishment option off
the table. See Coker v. Georgia, 433 U. S. 584 (1977).
Cite as: 554 U. S. ____ (2008) 3
Statement of SCALIA, J.
Second, JUSTICE KENNEDY speculates that the Eighth
Amendment may permit subjecting a member of the mili-
tary to a means of punishment that would be cruel and
unusual if inflicted upon a civilian for the same crime.
That is perhaps so where the fact of the malefactor’s
membership in the Armed Forces makes the offense more
grievous. One can imagine, for example, a social judgment
that treason by a military officer who has sworn to defend
his country deserves the death penalty even though trea-
son by a civilian does not. (That is not the social judgment
our society has made, see 18 U. S. C. §2381, but one can
imagine it.) It is difficult to imagine, however, how rape of
a child could sometimes be deserving of death for a soldier
but never for a civilian.