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Is Louisiana working on its Kennedy rehearing petition? Will Gov. Jindal stay true to his word?

By Douglas Berman

According to SCOTUS Rule 44, a party has 25 days to petition the Supreme Court for rehearing, which means Louisiana now less than two weeks to file a rehearing petition in the Kennedy child rape case.  Notably, according to quotes in this local news account (with my emphasis added), Louisiana’s Governor has essentially promised that the state would be filing a rehearing petition:

Governor Bobby Jindal says the U.S. Supreme Court made a factual error when it banned the death penalty as a sentence for those convicted of raping children…. Jindal says the high court “got this case wrong, plain and simple.”

“As both the Governor of this great state and as a parent of three children, I continue to be outraged over the Supreme Court’s absurd decision to overturn a death penalty sentence for the brutal rape of a child while citing that ‘the death penalty is not a proportional punishment for the rape of a child;’ and I will do everything I can to see that this decision does not stand,” Jindal said.

Interestingly, the Supreme Court’s rules provide that the “Clerk will not file any brief for an amicus curiae in support of, or in opposition to, a petition for rehearing.”  Thus, politicians and others troubled by the Kennedy ruling cannot formally show support for rehearing through the filing of a brief.

Jmac_1_2 There are lots of other ways, however, that support for rehearing can be demonstrated, and I wonder if Gov. Jindal really will do “everything” he can to see that the Kennedy decision gets reconsidered.  Specifically, Gov. Jindal seems tight with Senator John McCain and might here seek the benefits of the Senator’s high profile as the Republican presidential nominee.  Given that Senator McCain has already bashed the Kennedy ruling (details here and here), it would make sense for Gov. Jindal to ask Senator McCain to speak out and actively support Louisiana’s rehearing petition from the campaign trail.

Going further, Gov. Jindal could seek to turn the heat up on these issues by reaching out to Senator Barack Obama and asking him to support Louisiana’s rehearing petition.  Senator Obama was critical of the Kennedy ruling when it was handed down, and Gov. Jindal could reasonably assert that a “new” kind of politician (especially one with an impressive legal background and a former Constitutional Law professor) should be eager to get the Justices to fix significant errors in important opinions regardless of which political party may be more troubled by the errors.

Further still, Gov. Jindal might also reach out to other members of Congress to urge passage of a resolution encouraging the Justices to rehear Kennedy.  (Such a resolution would be akin to the concurrent resolution passed in July 2004 in the wake of the Blakely decision urging the Justices to swiftly consider Blakely‘s impact on the federal sentencing system).  After all, the national legislature should not be content to just sit on its hands when the nation’s High Court bungles a key point about federal law in an important and high-profile case. 

Jindal_and_crist Of course, I am only scratching the surface here concerning what Louisiana’s governor might consider if he is really committed to doing “everything” he can to see that the Kennedy decision does not stand:

  • Gov. Jindal might reach out to prominent elected officials in other states to get them to actively express their support for rehearing (as noted here, many claimed to be outraged by the Kennedy decision);
  • Gov. Jindal might urge pollsters to do national surveys on public opinion concerning capital child rape to spotlight the majority’s mistaken assessment of a national consensus;
  • Gov. Jindal might urge the editorial boards of major newspapers around the country to join the Washington Post in urging rehearing in Kennedy
  • Gov. Jindal might urge prominent pundits like Rush Limbaugh and Sean Hannity to use their shows to urge SCOTUS reconsideration.

Rush_and_jindalI seriously doubt that Gov. Jindal really will do “everything [he] can to see that this [Kennedy] decision does not stand.”  In fact, I have a nagging feeling that Louisiana may not even file a rehearing petition, perhaps because the state’s lawyers will conclude that it would be a futile effort.  Still, on the theory that politicians should not actively bash judicial rulings in public without being willing to also take efforts to raise their concerns directly to the court, I genuinely hope that Gov. Jindal (and Senator McCain) are interested here in more than just anti-SCOTUS political talking points.

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