THE SUPREME COURT erred yesterday in deciding not to rehear a case involving the death penalty for the rape of a child.
The justices decided by 5 to 4 in June that a Louisiana law that allowed capital punishment for someone convicted of raping a child violated the Constitution. The court concluded that "evolving standards of decency" and the absence of a "national consensus" behind such a penalty showed that Americans do not favor allowing capital punishment for a crime that does not result in the victim's death. As proof, Justice Anthony M. Kennedy noted in his opinion for the majority that only six states had such laws on the books. In dissent, Justice Samuel A. Alito Jr. pointed out that five of those states had only recently enacted the laws, suggesting that public opinion was trending the other way. This debate was not academic; Supreme Court precedent dictates that justices take into account such trends to determine whether the application of the death penalty in a particular context constitutes cruel or unusual punishment.
Unfortunately, the debate also turned out to be incomplete. Only after the court issued its decision in June did it learn that Congress had in 2006 passed a law that allowed the death penalty for a member of the military found guilty in a court-martial of raping a child. Louisiana asked the court to rehear the case on the basis of this discovery.
Yesterday, in declining to do so, the court may have damaged, even if slightly, its own reputation. Justice Kennedy, joined by the four "liberals," argued that the military has long allowed capital punishment for rape; Congress in 2006, Justice Kennedy wrote, simply "reclassified" the crime into separate provisions that dealt with adult and child victims. He also asserted that Congress and the president may have had good reasons for singling out perpetrators in the armed services for special punishment that in the civilian context would be unconstitutional. These arguments are unconvincing and leave -- deservedly or not -- the impression that a majority of the court refused to allow new facts to alter their positions. Justices Alito and Clarence Thomas voted to rehear the case. Chief Justice John G. Roberts Jr. and Justice Antonin Scalia declined the petition to rehear, arguing that rehearing would have been futile, given that none of those in the majority would have changed his or her vote.
As a matter of policy, we oppose the death penalty and argued against its expansion to someone who rapes a child, as in the Louisiana case. But as a legal matter, it is a close call whether capital punishment is a legitimate response to such a heinous crime. The revelation about the military death penalty for such cases altered the factual landscape. In a case with so much at stake -- not least a legitimately passed state law -- the justices should have kept open minds and formally reevaluated the matter.