Florida Governor Ron DeSantis (R) just all-but-assured that his latest law will end up before the U.S. Supreme Court.

DeSantis signed a law passed by the Florida legislature that would allow the death penalty to be used in child rape cases, which directly conflicts with a Supreme Court ruling in 2008 that disallowed the death penalty in cases where the victim survived the crime. 

The new Florida law would only allow the death penalty in cases where the victim was under 12 years old. DeSantis argued that the Supreme Court ruling was wrong, setting up an intentional challenge to the precedent.

“We think that in the worst of the worst cases, the only appropriate punishment is the ultimate punishment,” DeSantis said.

Reopening case

When the Kennedy v. Louisiana case outlawing the death penalty in child rape cases was before the court, Ruth Bader Ginsburg and Antoni Scalia were still alive, Anthony Kennedy and Stephen Breyer had not retired, and the three conservative justices appointed by former President Donald Trump were not yet a part of its makeup.

DeSantis thinks the court will want to reopen the case and reconsider it in light of his new law, but legal experts aren't so sure.

In 2008, Chief Justice John Roberts and Associate Justices Samuel Alito and Clarence Thomas opposed the ruling, but four justices are required to “grant certiorari" to review the case, and they only do so if they have five justices willing to overturn it.

“I doubt whether it would pass muster in the Supreme Court,” Ohio State University Law Professor Gregory Caldeira said of the Florida bill.

Not as concerned with precedent

Other experts said the court may take a different view, however.

Because the current Supreme Court “is not as concerned with precedent as some courts in the past,” OSU Law Professor Emeritus Joshua Dressler said, “it is conceivable that this Court would overturn Kennedy and Coker.”

The court would also likely win points in the court of public opinion, Dressler said.

“Child rape is a crime so heinous that I doubt they would worry about public condemnation of such a ruling. They did not worry about overruling Roe v. Wade even though the majority of Americans favor the right to abortion,
he pointed out.

Cato Institute research fellow Jay Schweikert thinks that if a brand new case came before them about the use of the death penalty in child rape cases, the current court would see at least six justices rule in favor.

But oveturning a precedent is a more difficult task, and the standards used to overturn "stare decisis" are different.