Whether it was an error or not depends upon whether you believe that the majority reasoned from the law to the outcome or decided on the outcome they wanted to achieve and rounded up law to support it. It reinforces the point I've made before: I think we've reached the point in which the education for lawyers, which includes inculcating a spirit of zealous advocacy, is inappropriate for judges.

Actually the best way to review is for Louisiana to pass the same law with an additional citation in the pre-amble noting that this is in line with the rising national consensus in light of the federal law.

There will be a motion for rehearing, with limited briefing. In due course thereafter will come a short supplemental opinion from Justice Kennedy, joined by the four Justices from the liberal wing, denying the motion for rehearing. It will try to explain why the laws that America, through its Congress and president, has chosen to apply to its own uniformed sons and daughters are nevertheless absolutely meaningless data points in the SCOTUS' determination of America's "evolving standards of decency."

Dave: Your point about over-advocacy is a very interesting one. When I was clerking, I was acutely aware that while I had to avoid obvious appearances of advocacy in the opinions I was drafting for my judge's review and adoption, nevertheless each such written opinion was, in a sense, a self-advocating written work, a self-justification for the decision contained in it. Trial courts and intermediate appellate courts also want to avoid being reversed; as a appellate law clerk, I learned how trial court findings and conclusions could be drafted to make the result they reached more effectively "bullet-proof" on further review. Every time I submit proposed findings and conclusions now, that's the subtle, implicit lure to the judge I'm asking to adopt them: "Use my arguments, cite my cases, structure your ruling this way, with alternative bases for your holdings, to make yourself less likely to be overturned (and my client to lose) on appeal."

Some of the criticisms of Justice Stevens' dissent in the gun control case suggest sloppiness that borders on, and probably crosses over into, outright intellectual dishonesty in an effort to support a particular line of reasoning and result. But that's a different sort of embarrassment than that which Justice Kennedy and, indeed, all the litigants and even the Justice Department have suffered here.

With apologies for link-whoring: My extended take, with an observation on what this mistake in Kennedy v. Louisiana tells us about the vastly more important case of Bourmediene v. Bush, is over on my own blog.

It's a terrible goof, especially for the highest court in the land, but the fact remains that doling out the death penalty for crimes other than murder is quite a slippery slope. While the court showed poor research and investigation skills, this should not have affected the outcome at all.

joe: With due respect, you miss the point.

I actually agree, as a policy matter, that no rape, not even a child rape, should be made punishable by the death penalty. That's how I would vote were I a state legislator, or that's how I would wield my pen were I a state governor reviewing the legislature's acts. Louisiana's legislature and governor (and, in the case of the child rape capital crime in the UCMJ, Congress and the president) disagreed with you and me on that, however.

What's outrageous is the SCOTUS' imperious usurpation of that combined legislative and executive policy-making function. The least representative branch of either the state or federal government has, on all important matters relating to the death penalty, pre-empted the most representative branches of government who are best suited to make (and change, with experience) sensitive policy determinations. That Justice Kennedy et al. accomplish this coup d'etat by claiming to be divining "evolving standards of decency" — as if they're better equipped for that than, ya know, the actual elected representatives of the public — adds insult to constitutional injury.