It’s hard to believe that the Supreme Court’s summer recess is almost over. But when the justices return to begin a new term on the first Monday in October, the real surprise could be that a case decided last June is back on the docket to be reheard.

The case we’re talking about is Kennedy v. Louisiana, No.07-343, another decision in which a bare majority of the Court took another step toward eliminating the death penalty. Specifically, on the next to last day of last term, Justices John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer ruled that it was unconstitutional to impose capital punishment for the crime of raping a child.

Why? Well, according to those five justices, the death penalty would constitute a “cruel and unusual punishment” that violated the Eighth Amendment -- never mind that the Constitution elsewhere explicitly contemplates the ultimate sentence. As Justice Kennedy wrote for the five justices to explain, “[t]hough the death penalty is not invariably unconstitutional,” it “should not be expanded to instances where the victim’s life was not taken.”

Indeed, the same bare majority had already reached a similar constitutional conclusion when it came to the execution of the mentally retarded and minors in earlier decisions from 2002 and 2005. So, Kennedy v. Louisiana was just another footprint on the same path, justified in the same way.

In all three cases, the five justices claimed they reached their decision further limiting the application of the death penalty based on the “the evolving standards of decency that mark the progress of a maturing society.” And, in determining whether American society had “evolved” to the point that capital punishment was “cruel and unusual punishment” -- first for the mentally retarded, then for minors, and now for child rapists -- the five justices looked to see just how many of the United States still allowed such death sentences.

As a result, it has become pretty important just which places have laws that allow the death penalty for specific criminals committing specific crimes. Indeed, the primary reason cited by Justice Kennedy’s bare majority opinion striking down the death sentence for child rapists was that a “national consensus” had developed against such a severe and final punishment for that particular crime.

Unfortunately, no one involved in Kennedy v. Louisiana -- not the parties who briefed and argued the case, not the law clerks who researched the case, and not the justices who decided the case -- had discovered that a federal law authorized death sentences for child rapists. Instead, less than a week after the ruling came down, a “military blog pointed out” for the first time that “the Uniform Code of Military Justice” was revised “in 2006 to add child rape to the military death penalty,” as the New York Times reported last July.

That caught everyone by surprise.

Indeed, this meant not only that Congress had specifically approved nationwide legislation permitting capital punishment for child rapists, but also that the President signed off on the law, as well. What’s more, President Bush issued an executive order, which, according to the Times, “put the provisions into the 2008 edition of the Manual for Courts-Martial.” In other words, not only were Louisiana and several other states on record supporting the death penalty for child rapists, but our national government had specifically approved of that punishment, too.

Understandably, both Louisiana and the federal government thought the justices should take another look at this case. After all, the justices didn’t have all of the information -- and couldn’t consider all of the consequences -- when they decided Kennedy v. Louisiana. If the decision remained, the previously unknown federal law allowing the death penalty for child rape in the military context had to be unconstitutional, as well. And, this was a law “We the People” had just recently approved through our elected representatives.

Last week, the justices agreed to consider rehearing the case, and ordered the parties and the Solicitor General of the United States to submit briefs discussing whether last term’s decision should continue to stand. This was real news, since the Court almost never rehears a case that has already been decided. It was the necessary first step for the Supreme Court to take in backing away from the ruling. So when the justices reconvene in two weeks for the new term their first important decision will be whether a blockbuster death penalty decision from last term is truly dead.