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Opening Arguments

Dead wrong

No guarantee the the Supreme Court will revisit the spectacularly incompetent 5-4 decision in the Kennedy v. Louisiana case last term, but it has at least set up that possibility:

In a rare move, the Supreme Court said it might reconsider its June decision that struck down the death penalty for crimes that fall short of murder, after a law blog revealed that the government left out a fact that would have bolstered its argument that executions for such offenses are constitutional.

The case involves a Louisiana statute authorizing a death sentence for the rape of a child. In a 5-4 decision, the court found that capital punishment for the crime violated the Eighth Amendment prohibition of "cruel and unusual punishments."

In finding the penalty excessive, Justice Anthony Kennedy's majority opinion noted that neither the U.S. government nor the overwhelming majority of states permit capital punishment for child rape. Justice Kennedy relied on briefs filed by Louisiana and the U.S. Justice Department.

But Justice Department lawyers overlooked a 2006 amendment to the Uniform Code of Military Justice authorizing death for certain sexual assaults on children under age 16. The error was found by Dwight Sullivan, an attorney and Marine Corps Reserve colonel and military-justice blogger. Louisiana and the Justice Department asked the court to reconsider the decision.

Because of the 4-4 Supreme Court split, Kennedy the swing-voter is arguably the most powerful person in the country, and it's scary that he's this sloppy. He wrote in his opinion that there is a "national consensus" that those who commit crimes not involving death should not receive capital punishment, an absurd argument. Stories about this case all say that the court erred because lawyers arguing for an against the death penalty did not inform the court of the relevant law. But isn't the Supreme Court supposed to be smarter and more informed than the people seeking its opinion?