Justice Anthony M. Kennedy, writing for the five justices who were in the original majority in the child-rape case, said a recent federal law, which had been overlooked by the parties and the court, did not alter the court’s analysis. The law, a 2006 amendment to the Uniform Code of Military Justice, specifically made child rape committed by military personnel a capital crime.
The law arguably undermined a premise of the original decision, which said there was no national consensus favoring the death penalty for the rape of a child. The decision in June noted that only six states permitted the punishment for that crime.
On Wednesday, Justice Kennedy wrote that the 2006 amendment merely tinkered with a statute that had long authorized capital punishment for the rapes of both adults and children. He added that “authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context.”
Justice Kennedy acknowledged that the last time the military imposed the death penalty, in 1961, it was for rape and attempted murder. He did not say that the victim had been an 11-year-old girl. The defendant in the case before the court, Patrick Kennedy, had been convicted of raping his 8-year-old stepdaughter.
Justice Antonin Scalia, joined by Chief Justice John G. Roberts Jr., also voted not to rehear the case, but on a different ground. Justice Scalia called the original decision disingenuous and suggested that nothing would change it. “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,” he wrote.
“Let there be no doubt,” he added, that the recent law “utterly destroys the majority’s claim to be discerning a national consensus and not just giving effect to the majority’s own preference.”
Justices Clarence Thomas and Samuel A. Alito Jr., who like Chief Justice Roberts and Justice Scalia dissented from the June decision, voted to rehear the case, Kennedy v. Louisiana, No. 07-343, but they did not offer reasons.
To take account of the recent federal law, the court added two footnotes and six words to the majority and dissenting opinions. The new footnote to the majority decision acknowledged the law and said, “We find that the military penalty does not affect our reasoning or conclusions.”
The court also agreed to hear 10 of roughly 2,000 appeals that had accumulated over its summer break. It took no action in the case of Troy A. Davis, a death row inmate in Georgia whose claims of innocence are supported by several witnesses. The court granted a stay of execution in Mr. Davis’s case on Sept. 23, and it remains in effect.
Three of the cases the court agreed to hear involve tangled litigations over what could prove to be huge sums of money. The rest are criminal cases and concern issues like speedy-trial rules, plea bargains and potentially biased jurors.
The court agreed to hear two cases concerning when and how the government may recoup environmental cleanup expenses from companies to some extent responsible for pollution under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, known as the Superfund law.
Last year the United States Court of Appeals for the Ninth Circuit ruled that Shell Oil, which sold a fumigant to an agricultural operation in Arvin, Calif., was liable under the 1980 law although it was not directly responsible for any spills. It also ruled that Shell and two railroads that leased land to the operation might be held responsible for all the cleanup costs although their roles were concededly relatively minor.
The two environmental cases, consolidated by the justices, are Shell Oil v. United States, No. 07-1607, and Burlington Northern v. United States, No. 07-1601.
The court also agreed to hear a case from Hawaii that may determine whether the state is free to sell or transfer any of some 1.2 million acres, almost a third of all the land in Hawaii. The Supreme Court of Hawaii ruled in January that the state could not proceed until it reached a political settlement with Native Hawaiians who claim to own the land.
The state court based its ruling in large part on a 1993 Congressional resolution expressing regret for the nation’s role in the overthrow of the Hawaiian monarchy 100 years before. The case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372, will turn on the proper interpretation of that resolution.
Another case, United States v. Navajo Nation, No. 07-1410, also concerns rights of indigenous people. A federal appeals court ruled last year that the United States might owe the Navajo nation as much as $600 million in a dispute over coal leases. The government says a 2003 Supreme Court decision in the same case required a decision in its favor.
Several criminal cases the court agreed to hear concern narrow issues, but one, arising from a decision of the Vermont Supreme Court in March, could have a broad impact. That court overturned the conviction of Michael Brillon, who had been found guilty of domestic assault as a habitual offender and sentenced to 12 to 20 years in prison. The court said the three-year delay in bringing the case to trial had violated Mr. Brillon’s rights.
In urging the United States Supreme Court to hear the case, Vermont v. Brillon, No. 08-88, state prosecutors said the ruling was “a first in the history of American jurisprudence,” because the delays in question had largely been caused by Mr. Brillon’s own court-appointed lawyers. The general rule is that the right to a speedy trial is not affected by self-inflicted delays.
The Vermont Supreme Court acknowledged that, but said the delays in Mr. Brillon’s case had been caused by overburdened public defenders and so should be counted against the state.
“When, as in this case, a defendant presses for, but is denied, a speedy trial because of the inaction of assigned counsel or a breakdown in the public defender system,” Justice Denise R. Johnson wrote for the state court’s majority, “the failure of the system to provide the defendant a constitutionally guaranteed speedy trial is attributable to the prosecution, and not defendant.”