Fine until it's one of theirs

The Wall Street Journal has the story of the latest whadda-fuck out of the Supreme Court:

The Supreme Court reaffirmed its June ruling that capital punishment is unconstitutional for crimes short of murder, rejecting pleas from the Bush administration and the state of Louisiana to reconsider in light of new information.
In June the court ruled, 5 to 4, that a Louisiana statute providing the death penalty for raping a child under age twelve violated the Eighth Amendment, which bans "cruel and unusual punishments." The case dealt with the March 1998 rape by Patrick Kennedy of his eight-year-old stepdaughter. The aggravated-rape conviction, combined with the victim's age, resulted in a sentence of death under Louisiana's rape laws.
In finding "a national consensus against capital punishment for the crime of child rape," the majority opinion by Justice Anthony Kennedy observed that neither the federal government nor 44 states authorized the death penalty for such crimes. (The other six authorize the death penalty in child-rape cases under some circumstances.)
After the opinion was delivered, a Marine Corps Reserve lawyer, Col. Dwight Sullivan, observed in his law blog that military law provided the death penalty for child rape, a point none of the parties had raised with the court. Louisiana and the Justice Department asked the court to rehear the case, arguing the omission undercut the finding of a national consensus. Mr. Kennedy's attorneys argued the court rarely looks to military law to inform its analysis of constitutional rights. "Had the state or some other party timely informed this court about the treatment of rape under military law, it might have warranted a footnote in this court's opinion," but nothing more, the convict's lawyers wrote.
The Supreme Court agreed; both the majority and the dissenters added brief footnotes to their opinions. In separate statements, the majority and two of the dissenters explained their reasoning.
Writing for the majority, Justice Kennedy observed that the military has authorized death for rape for more than a century, but that no one has been executed for the crime since 1961. In 1977, when the court struck down the death penalty for rape of a sixteen-year-old, no mention was made of military law, Justice Kennedy wrote, joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.
The June decision applied only to civilian law, Justice Kennedy wrote, "so we need not decide whether certain considerations might justify differences in the application of the cruel and unusual punishments clause to military cases."
Justice Antonin Scalia, joined by Chief Justice John Roberts, agreed that no rehearing was necessary. They wrote that a rehearing was pointless, because the majority was determined to limit the death penalty regardless of popular opinion.

Rico says the fact that 44 states didn't have the death penalty for child rape was surely just an oversight on their part... (Oh, well, back to lynching.)