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Sunday, July 20, 2008

Is LA Gov. Jindal about to flip-flop on capital child rape?

As reported here at SCOTUSblog, tomorrow "is the deadline to seek rehearing in Kennedy v. Louisiana (07-343), though there has been no indication the state of Louisiana will seek rehearing...."  I will be very disappointed if Louisiana does not petition for rehearing, especially given that, as detailed here, Governor Bobby Jindal has stated in this official press release that the Supreme Court "got this case wrong, plain and simple" and that he "will do everything [he] can to see that this decision does not stand."  I am hoping that Governor Jindal will stay true to his word and have his state at least ask the Justices for rehearing in Kennedy.

I am not sure that the Justices will or even should grant rehearing in Kennedy, but I am sure that there are lots of justifications for Louisiana filing a rehearing petition.  The Washington Post stressed in an editorial discussed here why the error the Kennedy decision made about federal law alone justifies rehearing:

The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That's why we think the court needs to reopen this case -- even though we supported its decision.... [T]his is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.

Moreover, as some commentary has highlighted, both major candidates for President disagreed with the Kennedy court's ruling, and recent poll data (discussed here at The Volokh Conspiracy) indicate that a significant majority of Americans support child rape being a death eligible crime.  In other words, the assertion that there is a national consensus againt capital child rape looks much worse now than it did just last month. 

Whether or not there is a reasonable chance that the Supreme Court grants rehearing and/or reconsiders the merits of its decision, I think it is very important for Governor Jindal to follow up his blustery court-bashing with an actual legal filing.  As I have suggested in this prior post, it would be sad and telling if Gov. Jindal's comments were only intended to score anti-SCOTUS political points and he does not have enough conviction in his own assertions to bring his complaints directly to the Court.  (Notably, Gov. Jindal's slogan on his official website is "I'm asking you to once again believe in Louisiana."  I will never again believe in him if he does not have his state petition for rehearing in Kennedy.)

Some related recent posts (from SL&P):

Cross-posted at SL&P

UPDATE:  No flip-flops; as detailed here, Louisiana has now petitioned for rehearing in Kennedy.

Posted by Douglas A. Berman on July 20, 2008 at 05:00 PM in Law and Politics | Permalink

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Comments

I see that Prof. Berman's concern is now moot.

Posted by: merevaudevillian | Jul 21, 2008 6:03:04 PM

You may not be from Louisiana, but the line "Jindal decides the state's resources are more efficiently spent on continuing to bring child-rape death penalty cases in defiance of the Supreme Court, rather than spending thousands on a potentially nearly-assuredly-futile petition?" made me laugh. Unfortunately, I *do* live here. Louisiana just passed a law allowing the teaching of intelligent design, which will be challenged, and fail, just like the last time creationism went vs. the supreme court--also from Louisiana. Jindal was also happy trading off 100% raises for state legislators in return for getting his "ethics reforms" passed--until voters started a recall petition against Jindal. I'm not sure America's seen a politician with this much raw brain power and this little common sense since Nixon.

Posted by: Sejanus | Jul 21, 2008 5:40:02 PM

I'm curious why Jindal MUST request rehearing in order to "stay true to his word." You note, "I am not sure that the Justices will or even should grant rehearing in Kennedy, but I am sure that there are lots of justifications for Louisiana filing a rehearing petition." What are those "justifications" if you're "not sure" the justices "even should grant rehearing"? What if Jindal decides the state's resources are more efficiently spent on continuing to bring child-rape death penalty cases in defiance of the Supreme Court, rather than spending thousands on a potentially nearly-assuredly-futile petition? What if he commissions a study on the death penalty rather than ask rehearing on a federal-only (indeed, military-only) error by the Court?

Posted by: merevaudevillian | Jul 20, 2008 8:11:50 PM

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