You know you're the bomb (mostly :-)) in my book, this just struck me as very unusual for you.

Next thing I know you'll be asking for respect for this guy.

Previously, the standards for competency for purposes of being subject to being executed have all turned on "awareness."  No particular quality of understanding was required.

Using "awareness" as the key, then, the federal district court found, and the Fifth Circuit relied upon its findings, that Panetti "is aware that he committed the murders; second, he is aware that he will be executed; and, third, he is aware that the reason the State has given for the execution is his commission of the crimes in question." (Kennedy's majority opinion at 21, .pdf at 29.)  Those courts thought that those findings essentially ended the question of his competency to be executed under their reading of the most narrow holding of the mish-mash of opinions in Ford.

But Panetti's lawyers claimed they were entitled to also make "a showing that his mental illness obstructs a rational understanding of the State's reason for his execution." (Id., emphasis mine.) More specifically, his lawyers asserted that his "delusions ... interfer[e] with petitioner's understanding of the reason behind his execution."  

More specifically, they pointed to medical testimony that suggested — but on which the courts had made no fact findings one way or the other — that notwithstanding Panetti's awareness that he committed murder, is going to be executed for murder, and that the State says those murders are the reason for the execution, "petitioner 'believes the State is in league with the forces of evil that have conspired against him' and, as a result, 'does not even understand that the State of Texas is a lawfully constituted authority.'" (Slip op. at 28-29, .pdf at 33-34.) His delusion, say the experts hired by Panetti's lawyers, "has recast petitioner's execution as 'part of spiritual warfare ... between the demons and the forces of the darkness and God and the angels and the forces of light.' As a result, the expert explained, although petitioner claims to understand 'at the state is saying that [it wishes] to execute him for [his] murder[s],' he believes in earnest that the stated reason is a 'sham' and the State in truth wants to execute him to 'stop him from preaching.'" (Slip op. at 22, .pdf at 27.)

The district court and Fifth Circuit treated all this as being beside the point. In other words, it could all be true, but wouldn't matter if the issue is Panetti's awareness. This evidence all goes to the quality of his awareness, and to how thoroughly he genuinely understands what's going on, or not, and if not, why not.

Kennedy criticizes the Fifth Circuit for treating all this evidence as irrelevant (i.e., for treating it as an insufficient basis for preventing the execution): "The Court of Appeals' standard treats a prisoner's delusional belief system as irrelevant if the prisoner knows that the State has identified his crimes as the reason for his execution." (Slip op. at 25, .pdf at 30.)

Here is the key sentence of the merits holding:  "A prisoner's awareness of the State's rationale for an execution is not the same as a rational understanding of it." (Slip op. at 27, .pdf at 32.)

Although he doesn't call it a "new, additional test," Kennedy effectively acknowledges that he's just announced a new, additional test: "[T]he record was developed pursuant to a standard we have found to be improper." (Slip op. at 29, .pdf at 34.) He says "Ford does not foreclose inquiry into the latter [i.e., into the prisoner's rational understanding of the State's rationale for his execution]." (Slip op. at 27, .pdf at 32.)  But that's just a stealth concealment of the fact that he's announced a new test.  

If the inquiry is "not foreclosed," that means it's going to take place on remand, right? Is there any possible reason for having the inquiry take place on remand other than because if Panetti is found to lack a "rational understanding" of the "State's rationale for [his] execution," then the State can't execute him?

Is that supposed to be a fact finding that the district court makes, and then tucks away as it sends him back to the execution chamber? I don't think so.