I think Scalia has it right here:
The state argued that the case should be reopened because Justice Anthony Kennedy relied in part on what he called a “national consensus” against executing convicted rapists. The court split 5-4 in the June 25 ruling. . .
The provision of military law setting out punishments for rapists “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,” Kennedy wrote, joined by the four liberal justices who formed the majority in June. . .
The number of jurisdictions that allowed for capital punishment for rapists was irrelevant to the court’s decision, Scalia said. Instead, the justices in the majority employed their independent judgment to say the Constitution forbids executions when the defendant does not kill the victim, he said.
“There is no reason to believe that absence of a national consensus would provoke second thoughts,” Scalia said, noting his strong disagreement with the initial ruling.
Internet Scofflaw 