The Acting Solicitor General today asked the Supreme Court to reconsider its opinion in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008). Here’s a link to the Motion for Leave to File Brief and Brief for the United States as Amicus Curiae Supporting Petition for Rehearing. And here’s a link to SCOTUSblog’s discussion of the Acting SG’s move.
As was the case with Louisiana’s rehearing petition, military law plays a prominent role in the Acting SG’s filing. It uses the National Defense Authorization Act for Fiscal Year 2006 for both procedural and substantive purposes. First, the Acting SG argues that because Kennedy endangers the constitutionality of that act’s authorization of the death penalty for child rape, it justifies the extraordinary step of allowing the United States to support a rehearing petition in a case in which the United States didn’t originally participate. Second, the Acting SG uses the NDAA substantively to argue that it and President Bush’s implementation of the NDAA in his 2007 MCM amendments undercut the Supremes’ finding of a national consensus against imposition of the death penalty for child rape.