In an unusual step, the Supreme Court Monday modified its controversial decision from last term that concluded a person could not be put to death for raping but not killing, a child.
While the decision still stands, the court was forced to acknowledge an embarrassing fact: It had not known that Congress had passed a law in 2006 allowing the death penalty for child rape by military personnel.
The law was brought to the court's attention only after the opinion had been issued in a letter signed by 85 members of Congress last summer.
Justice Anthony Kennedy, writing for a 5-4 majority, had relied in part on a "national consensus" against the death penalty for the crime of child rape in last term's decision. On Monday, Kennedy was joined by the four liberal justices who had formed the majority in explaining why the new information would not affect their decision.
"In any event, authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context," Kennedy wrote. He concluded that the law pertaining to the military "does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty here is unconstitutional."
While Justices Sam Alito and Clarence Thomas would have voted to have the entire case reheard, Justice Antonin Scalia, joined by Chief Justice John Roberts, filed a scathing statement saying they didn't believe the case should be reheard because they didn't believe the majority truly relied on a national consensus in the first place.
Scalia said the revelation of the 2006 law "utterly destroys the majority's claim to be discerning a national consensus," but he also said that "the views of the American people on the death penalty for child rape were, to tell the truth, are irrelevant to the majority's decision in the case."
Scalia points out that the law was passed in the Senate by a vote of 95-0 and in the House 374-41.