The court today denied, 7-2, an appeal to rehear the case. Scalia, brilliant as always, voted with the majority not because he doesn't think the case was wrong decided, but:
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... 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.” Of course the Constitution contemplates no such thing; the proposed 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.
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Beautiful. He also destroys Kennedy's efforts to muddle the question of whether the court ought to consider military codes in determining "cruel and unusual" for civilians.
In one sentence:
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It is difficult to imagine . . . how rape of a child could sometimes be deserving of death for a soldier but never for a civilian.
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