SCOTUS May Reconsider Death Penalty Ruling After Blogger Identified DOJ Omission

The WSJ Law Blog is reporting that the Supreme Court may reconsider its decision in the Court's June death penalty case, Kennedy v. Louisiana, because a blog post disclosed that the DOJ failed to mention a relevant federal statute that would have bolstered its argument that executions for such child rape offenses are constitutional.

In Kennedy v. Louisiana, Justice Kennedy, writing for the 5-4 majority, struck down a Louisiana statute authorizing a death sentence for the rape of a child because it violated the Eighth Amendment's cruel and unusual punishment prohibition. Kennedy relied on briefs filed by Justice Department which failed to inform the Court of a 2006 amendment to the Uniform Code of Military Justice that authorized death for certain sexual assaults on children under age 16. The omission was identified by law blogger Dwight Sullivan. See his The Supremes Dis the Military Justice System.

The Court rarely reconsiders its own prior decisions and, if it does in this instance, it will be the first time it does so because of a blog post. [JH]