SCOTUS taking back a mistake?

Andy McCarthy reported at The Corner earlier this week that the Supreme Court has invited the parties to argue that the Kennedy v. Louisiana decision was wrongly decided. I am not sure how many people are familiar with this, but it was a case decided during the summer that John and I discussed with our coworkers at great lengths. In a 5-4 decision, the court ruled that a Louisiana law permitting the death penalty for child rapists was unconstitutional. From my perspective, and I am sure John's as well, this is an extremely welcomed development. 

The opinion was obviously very policy driven as the Court's 4 liberal justices and one incompetent justice, Anthony Kennedy, decided to use the case as an opportunity to limit the use of the death penalty. Ideally we know they would like to just end the practice all together, but strong public opinion the other way makes that quite unfeasible. 

The Court's reasoning was quite thin. They argued that since most other states had outlawed the practice of executing child rapists, a "national consensus" had been formed on the issue, which prevented Louisiana from acting contrary to it. As many people observed, the reason most other states had outlawed the practice was because of a prior Supreme Court decision from a few years back that outlawed the death penalty in cases involving the raping of adults. Most states assumed that since the death penalty was outlawed for adult rape cases, it would naturally apply to children as well. So most states outlawed the practice under the assumption that they were required to as a result of the previous decision. How very convenient then that the Court would site a "national consensus" that existed only because of their own previous decision. 

Kennedy also made a borderline incoherent argument that the practice was cruel and unusual. His reasoning was that the punishment is "disproportionate" to the crime. Who really believes that the death penalty is disproportionate punishment for the raping of a child (which in many if not most cases effectively ruins that child's life)? Even then if you were to accept the premise that this was a a "disproportionate" punishment, why does it then logically follow that it is cruel and unusual? What is the standard by which we deem something disproportionate to be cruel and unusual? All questions left open in the Court's flawed reasoning.

It is encouraging to see that the Court is now at least considering correcting an obvious mistake and doing the correct thing.