Cite as: 554 U. S. ____ (2008) 1 

Statement of SCALIA, J. 

SUPREME COURT OF THE UNITED STATES _________________ 

No. 07–343 

_________________ 

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 because 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 attention 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 majority’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 judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” 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 ultimately 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 consensus 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 subsection (b) (rape of a child), death or such other punishment 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). 
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Statement of SCALIA, J. 

 

 Second, JUSTICE KENNEDY speculates that the Eighth 

Amendment may permit subjecting a member of the military 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 treason 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.