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Blogger Finds Factual Error in Kennedy's Kennedy Opinion:

In turns out that Justice Kennedy's opinion in Kennedy v. Louisiana declaring the death penalty unconstitutional as a punishment for child rape mischaracterized federal law on the matter. As the NYT reports this morning, Kennedy's opinion claimed that the death penalty was only available in six jurisdictions within the United States, but that's not true. Kennedy correctly observed that the death penalty is not available for child rape in thirty of the thirty-six state jurisdictions that allow capital punishment. But Kennedy wrongly asserted that federal law does not provide for capital punishment either. This latter claim is simply untrue. Indeed, Congress has provided for the death penalty for child rape quite recently.

The mistake was uncovered by military blogger Dwight Sullivan, in this post for CAAFlog. As Sullivan noted, the FY2006 National Defense Authorization Act provided for capital punishment for child rape.

Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3264 (2006), provides that "[u]ntil the President otherwise provides pursuant to" UCMJ article 56, "the punishment which a court-martial may direct for an offense under" the amended UCMJ article 120 "may not exceed the following limits: . . . For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct."

That is a congressional statute expressly authorizing the death penalty for the rape of a child. How come neither side in the Kennedy case even mentioned it?

There is still time for the parties to the case to file a petition for reconsideration, but such petitions are rarely granted. I doubt Justice Kennedy would have decided the case any differently had he been more informed about current federal law. Nonetheless, it should be quite embarrassing that none of the advocates noted this error until now.

The NYT story closes with a kicker:

No one in the military has been charged with a capital crime yet under the revised provision. And despite the flurry of activity surrounding the death penalty, the military has not in fact executed anyone for decades. Its last execution took place on April 13, 1961, when Pvt. John A. Bennett was put to death by hanging. His crime: the rape of an 11-year-old girl.

UPDATE: How bad was Justice Kennedy's mistake? Consider this passage from his opinion discussing the allegedly evolving consensus:

As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse…. [A]n offender is death eligible only when the sexual abuse or exploitation results in the victim's death.
"Well, not exactly," notes Andrew McCarthy. He adds: "In point of fact, if there actually was a national consensus, it trended toward discouraging child rape by making execution an available sanction."

Related Posts (on one page):

  1. Should the Supreme Court Take Advantage of the Web?
  2. Post Calls for Kennedy Rehearing:
  3. Blogger Finds Factual Error in Kennedy's Kennedy Opinion:
Andrew Hyman (mail) (www):
I hope they file a petition for reconsideration. The Supreme Court should at least want to correct the misstatement in their opinion. Plus, reissuing the same result will give SCOTUS a chance to screw the democratic process and the Constitution twice instead of just once.
7.2.2008 11:27am
Tony Tutins (mail):
How embarrassing for Louisiana's lawyers. Still, our military justice system has little in common with the rest of our legal system.
7.2.2008 11:38am
DangerMouse:
How embarrassing for Louisiana's lawyers. Still, our military justice system has little in common with the rest of our legal system.

Embarassing for Louisiana? They're not the ones who flatly asserted a lie. That was Kennedy.

Chalk it up as yet another reason for him to be impeached.
7.2.2008 11:42am
Matthew Friendly (mail):
This is embarrassing for Kennedy, but no more embarrassing than has been most of his judicial career. One more notch on the belt....
7.2.2008 11:47am
Terrivus:
Still, our military justice system has little in common with the rest of our legal system.

Every jurisdiction outside the U.S. has "little in common with the rest of our legal system" -- certainly less so than the U.S. military system -- but that hasn't stopped certain members of the Court from relying on it, particularly in the context of the Eighth Amendment.

This embarrassing incident is about as good as it gets. First, not a single one of the high-falutin attorneys who litigated the case -- on either side, as party or amici -- uncovered the fact. Rather, it was a lone military law blogger. So much for the vaunted "Supreme Court bar."

Second, the fact that almost everyone agrees that it wouldn't have affected the Court's opinion (as will be evidenced by the fact that a petition for reconsideration will almost certainly fail) shines an even brighter light on the majority's disingenuousness regarding its "national consensus" argument. In other words, it really wouldn't have mattered anyway if no less a body than the U.S. Congress, representatives of the nation, had, in the last couple of years, enacted capital punishment for the rape of a child.

Third, the Court will almost certainly -- or, at least, should, for accuracy's sake -- issue a revised or amended opinion noting or fixing the error. Which will be the perfect cap to a stinker of an opinion.
7.2.2008 11:47am
Justin (mail):
Before too quickly putting all the blame on Justice Kennedy and his clerks, one should examine the briefs in this case. If petitioner's asserted that in their opening brief, and Respondants either explicitly or by silence failed to contest it, the mistake is far more understandable given the errors of both parties (and all of the amici).

On the other hand, if this was asserted in a reply brief, in an amcius brief, or not at all, then blame should be shared more narrowly.
7.2.2008 11:48am
krs:
This would be really interesting if anyone thought that the stuff in Kennedy's opinion had anything to do with his decisionmaking process. The foreign law thing didn't go over well in Roper, so he's switched arguments.

Even so, I hope there's a reconsideration petition filed. AMK needs to have his nose rubbed in this awful opinion as much as possible. A reconsideration petition pointing this out would be a good start.
7.2.2008 11:49am
DangerMouse:
Even so, I hope there's a reconsideration petition filed. AMK needs to have his nose rubbed in this awful opinion as much as possible. A reconsideration petition pointing this out would be a good start.

Agreed. Of course there's no hope that the Super Legislature of Judicial Masters will change their mind. They claim to be as infallable as the Pope, only on legal matters instead of spiritual matters. Rubbing the mistake in Kennedy's face would be a nice way of saying the Emperor has no clothes.
7.2.2008 11:58am
ARS:
If the counsels never even noticed this law, how was SCOTUS supposed to know about it? Moreover, if SCOTUS somehow found out about it on its own and based its opinion on that knowledge, wouldn't that violate the purpose of the appeals process, which is to review lower court decisions?
7.2.2008 11:59am
Sarcastro (www):
Kennedy clearly did this cause he's a liar and realized this would evicerate his whole argument for the Dems Pedophiles. Cause Justices never make mistakes, only calculated evil lies.

If he isn't impeached soon, his next ruling may very will give him dictatorial powers!
7.2.2008 12:00pm
Wings:
Are you sure that this is as embarrassing as you imply? Maybe he was referring only to civilian federal law, making it not a mistake? That seems more likely to me.
7.2.2008 12:01pm
vassil petrov (mail):
They're not the ones who flatly asserted a lie. That was Kennedy.

You can only lie if you are conscious about the difference between the reality and your statement.

One cannot lie by mistake.
7.2.2008 12:07pm
DangerMouse:
One cannot lie by mistake.

Fine. Kennedy's just a moron.
7.2.2008 12:11pm
Terrivus:
Maybe he was referring only to civilian federal law, making it not a mistake?

No. Here's the section from the opinion:


Thirty-seven jurisdictions--36 States plus the Federal Government--have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind.


There's no distinction between civilian and military law -- it's just "the Federal Government." That's just plain wrong.

The closest Kennedy could come to weaseling out of it would be the last sentence, in which he states, "in 45 jurisdictions, petitioner could not be executed for child rape of any kind." That's true, since petitioner here wasn't in the military or being subjected to military law. But you know, and I know, and he knows, and everyone knows, that's not what he meant. But we'll see if his defenders jump to that.
7.2.2008 12:14pm
martinned (mail) (www):
@ARS: Maybe not in Common Law countries, but in most of the world the maxim is ius cognoscit curia, the court knows the law. (I.e. you don't have to prove what the law is.)
7.2.2008 12:16pm
vassil petrov (mail):
Fine. Kennedy's just a moron.

No, making a mistake in itself does not make you a moron.
Only gods and insane people never make mistakes.
I won't ask which group you belong to.
7.2.2008 12:31pm
Carolina:
I'm as horrified by Kennedy's awful opinion as everyone else, but it does appear he was relying on the briefs and none of them found this law.

I'm not sure it's an indictment of Kennedy that he did not go and check behind a factual assertion that no brief contradicted.
7.2.2008 12:34pm
DangerMouse:
I'm not sure it's an indictment of Kennedy that he did not go and check behind a factual assertion that no brief contradicted.

It doesn't matter. His decision presumably was based on false facts. Of course, since we know he wouldn't have changed his mind anyway, we're all treating this new fact as merely interesting but unimportant. Yet if Kennedy is to believed (and he's not), then this 2006 law was a serious point in favor of an emerging consensus of using the death penalty for child rape.

The reason why Kennedy should be impeached is because we KNOW that this fact wouldn't have mattered to him. If it were known at the time, it would've been the subject of a good portion of the opinion. And an honest judge might acknowledge that it was a serious issue to be considered. For Kennedy, facts like these are inconvenient, and ultimately, irrelevant.
7.2.2008 12:49pm
Aaron Walker (mail):
KRS

> Even so, I hope there's a reconsideration petition filed. AMK needs to have his nose rubbed in this awful opinion as much as possible. A reconsideration petition pointing this out would be a good start.

And maybe he would really reconsider—not because the facts matter to Kennedy. They do not. But I sensed a pretty loud outcry against them. I can say to most people “who is more worthy of execution? Benedict Arnold or this sonofabitch in Kennedy v. LA?” The answers from even liberals is the second. So maybe he could change his mind, or Souter might suddenly spring a pragmatist bone and do the same. Or something. If I was LA’s lawyers, I would be doing that.

ARS

> If the counsels never even noticed this law, how was SCOTUS supposed to know about it?

Fair enough, which suggests this whole project of trying to divine a national consensus is a bad idea.

> Moreover, if SCOTUS somehow found out about it on its own and based its opinion on that knowledge, wouldn't that violate the purpose of the appeals process, which is to review lower court decisions?

Actually no. They can figure things out on their own—its allowed.

Wings

> Are you sure that this is as embarrassing as you imply?

Yes, it is. If congress expressed an opinion on the subject, it is relevant.

Vassil

> No, making a mistake in itself does not make you a moron.

Give them a break. Kennedy violated his oath of office in order to spare the life of a man who raped his own 8 year old daughter so hard that it literally broke the barrier between her vagina and her anus, because it would somehow offend the dignity of the rapist. He has no concern, however, for the dignity of the victim. The opinion is an outrage. The mistake was not moronic, but I can understand why people are angry enough to draw fine distinctions.

Carolina

> I'm not sure it's an indictment of Kennedy that he did not go and check behind a factual assertion that no brief contradicted.

The indictment is on relying on that kind of indicator in the first place. At least it is to me. The constitution is a constant, not something that changes according to a judge’s whim or his lame attempt at canvassing the zeitgeist of the country. Read alito’s dissent and tell me was not brazenly dishonest in his opinion—not for this factual error, but for claiming that a clear consensus exists either way.
7.2.2008 12:58pm
Gulf Coast Bandit (mail):
Sure a petition to reconsider might make a difference. When Kennedy flips the coin to decide which side to join, it might land on Louisiana's side.
7.2.2008 1:01pm
Anon #319:
If the counsels never even noticed this law, how was SCOTUS supposed to know about it? Moreover, if SCOTUS somehow found out about it on its own and based its opinion on that knowledge, wouldn't that violate the purpose of the appeals process, which is to review lower court decisions?


As a clerk, I can certainly defend oversights and mistakes generally. But here the mistake is material to the entire argument. If you render something unconstitutional by counting heads, you better count them correctly.
7.2.2008 1:05pm
Carolina:
Aaron Walker:


The indictment is on relying on that kind of indicator in the first place. At least it is to me. The constitution is a constant, not something that changes according to a judge’s whim or his lame attempt at canvassing the zeitgeist of the country. Read alito’s dissent and tell me was not brazenly dishonest in his opinion—not for this factual error, but for claiming that a clear consensus exists either way.


I agree with you completely. But that analysis is not altered by the fact he missed a law cited by no one. I agree his reasoning is horrible. I just don't see how this new fact changes anything -- it certainly does not suggest to me that Kennedy is incompetent.
7.2.2008 1:10pm
Neo (mail):
It really doesn't matter who "screwed the pooch", but it does matter that this has now set the standard of justice of civilians different than that under the UCMJ, or is Kennedy saying the Congress can't do that ?
7.2.2008 1:10pm
martinned (mail) (www):
Actually, the opinio said explicitly that the counting of heads was not dispositive:


"In these cases the Court has been guided by “objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions.” Roper, 543 U. S., at 563; see also Coker, supra, at 593–597 (plurality opinion) (finding that both legislatures and juries had firmly rejected the penalty of death for the rapeof an adult woman); Enmund, supra, at 788 (looking to“historical development of the punishment at issue, legislative judgments, international opinion, and the sentencing decisions juries have made”). The inquiry does not end there, however. Consensus is not dispositive. Whether the death penalty is disproportionate to the crime committed depends as well upon the standards elaborated by controlling precedents and by the Court’s own understanding
and interpretation of the Eighth Amendment’s text,history, meaning, and purpose."

Slip opinion, page 10.
7.2.2008 1:13pm
martinned (mail) (www):
@Neo: Presumably, this ruling applies equally to military law.
7.2.2008 1:14pm
Dave N (mail):
I disagree with Justice Kennedy on Kennedy, but I also truly appreciate the irony that the last service member executed was put to death for the rape of a child.
7.2.2008 1:23pm
Sarcastro (www):
Dave N, disagreement clearly isn't enough. Kennedy isn't just wrong, he has violated his oath of office, and that's the Objective Truth!

I think he's evil, and none of the other Justices should try to reason with him anymore.
7.2.2008 1:27pm
Anon #319:

Actually, the opinio said explicitly that the counting of heads was not dispositive:


Odd, then, SCOTUS does it nearly every time. So the thinking goes, "let's cite to Justice Jackson (or better yet no cite at all) and then go ahead and make the argument solely for cover?' It’s certainly relevant to a national consensus inquiry. Sadly, this demonstrates the calculus only matters when it favors the outcome AMK wants.

I do think when two other co-equal branches speak on it, and presumably have found it constitutional; it most likely should impact your analysis. But then I'm old fashioned that way.
7.2.2008 1:29pm
martinned (mail) (www):
@Sarcastro: I'm not sure if satire qualifies as sarcasm. (I'm assuming, in the absence of indication to the contrary, that you're not being serious.)


Main Entry: sar·casm
Pronunciation: \ˈsär-ˌka-zəm\
Function: noun
Etymology: French or Late Latin; French sarcasme, from Late Latin sarcasmos, from Greek sarkasmos, from sarkazein to tear flesh, bite the lips in rage, sneer, from sark-, sarx flesh; probably akin to Avestan thwarəs- to cut
Date: 1550
1: a sharp and often satirical or ironic utterance designed to cut or give pain
2 a: a mode of satirical wit depending for its effect on bitter, caustic, and often ironic language that is usually directed against an individual b: the use or language of sarcasm
7.2.2008 1:32pm
Sarcastro (www):
@martinned - If you read me with the right tone of voice, I assure you it is all sarcastic AND sarcasm! And Communist. Hence the Castro bit.
7.2.2008 1:37pm
EH (mail):
I agree with Sarcastro. The Supreme Court should start publishing their decisions as X-Y-Z: Opinion-Dissent-Kennedy.
7.2.2008 1:39pm
martinned (mail) (www):
I do think when two other co-equal branches speak on it, and presumably have found it constitutional; it most likely should impact your analysis.

@Anon #319: Not to be put in a position of defending this particular ruling (disclosure: I, like a big chunk of the world's population, think that the death penalty is repulsive on principle, but like any good lawyer I'm quite happy arguing aspects of the ruling on the merits separately from the big picture), but in any SCOTUS case where the constitutionality of a legal instrument is the issue at least one, or possibly both other branches consider the instrument in question constitutional. Otherwise it wouldn't come before the court in the first place.

Also, I think the best way to look at the language I quoted from the ruling is that the Court's analysis essentially has two (or three) prongs, one of which is the head count. It's not an "argument for cover", the more states have a certain law on the books, the less likely the Court would be to find it cruel &unusual, bearing in mind the analysis from precedent and from the Court's own understanding. (In other words, if all 50 states unanimously re-introduced death by decapitation, that would still not pass muster, given precedent, etc., but the less clear-cut the outcome is under the other two prongs, the more the head count matters.)
7.2.2008 1:42pm
SDProsecutor:
Re. the chances of a Petition for Reconsideration: may only Respondent file one, or are amici and others also considered to have standing to do so? I wouldn't think Louisiana would want to spend the money to do so, in light of the nearly negligible chance of even getting an opinion explaining the denial. In light of the obviously political nature of the issue, I would think a few well-heeled groups would jump at the chance, if only they could find some standing to file.
7.2.2008 1:55pm
martinned (mail) (www):
@SDProsecutor: Rule 44 does not say so, but I would imagine only the parties would have standing, since they are the only ones who would be directly affected by the decision on the petition. To the extent that anyone else might also be affected by the influence of the ruling on the law, they will have to bring a case (or controversy) of their own.
7.2.2008 2:14pm
vassil petrov (mail):
Assuming one is into this whole national/social consensus against business, does the fact that neither the parties that advocated the death penalty for child rape, not the amici in its support knew about this federal law actually prove the opposite position - that imposing death penalty for child rape is clearly against national consensus?
7.2.2008 2:22pm
Anon #319:
martinned: Ok, I misunderstood, I thought you were saying the 'head count' was some sort of dicta. My point about the UCMJ is that it isn't a state presumably interpreting the constitution, but Congress and the President. I do think when you are evaluating the case, the 'opinion' of your co-equal branches ought to be brought into the discussion. You can dismiss the various states' opinions on federalism grounds, not so with Congress and the President.

I understand that strictly speaking what the other branches say about the Eight Amendment doesn't factor into the current formal jurisprudence. Yet, it's not like the other branches have no ability or duty to make their own independent constitutional judgments on issues such as this one. So, if you are going to thumb your nose at them, you could at least address it in the opinion.

And Congress and the President, unlike the states, do represent the entire country. So, I would think when trying to discover that national consensus, what the two other national bodies 'think' about an issue ought to weigh somewhat heavily. So, again, if you are going to discount their opinion, at least discuss it. And the failure to do so, in my mind, ought to require reconsideration and a new opinion.
7.2.2008 2:25pm
wfjag:
Neo wrote:


It really doesn't matter who "screwed the pooch", but it does matter that this has now set the standard of justice of civilians different than that under the UCMJ, or is Kennedy saying the Congress can't do that?



LTC Michele Shields, Criminal Law Division, Office of the Judge Advocate General, in an article entitled The National Defense Authorization Act for Fiscal Year 2006,
Amendments to the Uniform Code of Military Justice
reviewedg the Joint Service Committee on Military Justice Report and on the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2006, Pub. L. No. 109-163, 119 Stat. 3136 (2006), at great length.

Among other things, the NDAA amended Art. 120, Uniform Code of Military Justice (UCMJ), 10 USC Sec. 920, which amendments made rape of a child a capital offense.

Her analysis leaves no doubt that the amendment of Art. 120, UCMJ, was to conform it to existing federal law. She wrote:


Article 120

You may be asking yourself why was there a change to Article 120? Can’t all sexual offenses be prosecuted under the current UCMJ? With those questions in mind, I will provide a brief background on the changes.

Section 571 of the NDAA FY 05 required the Secretary of Defense to review the UCMJ and MCM “with the objective of determining what changes are required to improve the ability of the military justice system to address issues relating to sexual assault”; and “to conform” the UCMJ and MCM “more closely” to other Federal Laws. The NDAA required the Secretary of Defense to submit to the Senate Armed Services Committee (SASC) and House Armed Services Committee (HASC) a report by 1 March 2006 on the aforementioned review. The report was required to include the recommendations for revisions to the UCMJ and, for each such revision, the rationale behind that revision.

As a result, the JSC established a subcommittee that conducted an extensive study of sexual assault including a review of the federal statute and all of the state statutes. During the NDAA review, the JSC subcommittee, the JSC, and the DOD all agreed that no change to the UCMJ was necessary. In essence, all sexual assault cases could be prosecuted. However, in response to the NDAA requirements, the committee included in their report several options for change to the UCMJ as well as a variation of Title 18 that they believed would be effective under military law incorporating military specific issues and case law established throughout the 50 plus years of the UCMJ. The final legislation drafted by Congress incorporates the JSC variation of Title 18 with some amendments.

The effective date of the new Article 120, UCMJ, is 1 October 2007. The JSC is currently drafting the MCM provisions and will finalize a draft EO that will be published in the Federal Register with a public meeting and public comment period likely during the summer of 2006.


It is pretty clear that Justice Kennedy's "consensus" argument is pure hokem. Not only did the Court (and appellate counsel) miss 10 USC Sec. 920 and the 2006 law enacting a death penalty for rape of a child, they also missed the 2006 Federal Register notice and public comments. I wonder what the comments and discussion in the FR look like?
7.2.2008 2:31pm
martinned (mail) (www):
@Anon #319: I think the importance of the opinions of the other two branches already factors into the jurisprudence (and into the constitutional rules themselves, eg. Art. III case or controversy requirement).
Maybe what you're looking for is something like what the Court of Appeals did in the South-Dakota abortion case this week, in the context of a request for a preliminary injunction seeking to enjoin the enforcement of a statute.


We characterize this more rigorous standard, drawn from the traditional test’s requirement for showing a likelihood of success on the merits, as requiring a showing that the movant “is likely to prevail on the merits.” As the Able court explained, a more rigorous standard “reflects the idea that governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly.” If the party with the burden of proof makes a threshold showing that it is likely to prevail on the merits,
the district court should then proceed to weigh the other Dataphase factors.

In conclusion, we emphasize that district courts should still apply the familiar “fair chance of prevailing” test where a preliminary injunction is sought to enjoin something other than government action based on presumptively reasoned democratic processes. Only in a case such as this one, where a preliminary injunction is sought
to enjoin the implementation of a duly enacted state statute, must district courts make a threshold finding that a party is likely to prevail on the merits. By re-emphasizing this more rigorous standard for demonstrating a likelihood of success on the merits in these cases, we hope to ensure that preliminary injunctions that thwart a state’s
presumptively reasonable democratic processes are pronounced only after an appropriately deferential analysis."


(Page 12-14, citations and footnotes removed.)
7.2.2008 2:39pm
Anon321:
I'm curious if anyone in the know thinks that the SG's Office -- and perhaps the Pentagon -- deserve some of the blame for whiffing on this one. My understanding is that when a SCOTUS case has the potential to invalidate a piece of federal legislation, the Solicitor General will make an appearance (and tend to argue against the side that would result in the federal law being struck down or cast into question).

I'd assume that the SG is typically responsible for determining which cases actually have the potential to affect federal statutes. I further assume that he typically does so by asking various branches of the federal government whether a given case implicates the areas of law that they administer. (Again, I could be wrong, so I'd love to hear from folks who have inside information.) But if that's the way it typically works, I wonder what went wrong here. Did the SG ask the Criminal Division, but not DoD? Did the Army miss it too?

I have to suspect that people in the SG's office are pretty shocked to discover that a piece of federal legislation got struck down without the United States even making an appearance.

(Note also that, during oral argument, Kennedy's counsel responded to a question about whether this decision would affect the federal drug kingpin and treason laws by alluding to the fact that the SG hadn't appeared in the case.)
7.2.2008 2:41pm
martinned (mail) (www):
Correction, the case was from last week (June 27), and is called: Planned Parenthood v Rounds, Court of Appeals for the 8th Circuit, case no. 05-3093.
7.2.2008 2:41pm
Anon #319:
martinned: I'm not familiar enough with the field to feel competent enough to tinker with the current jurisprudence (but what could I really mess up?). But I doubt that the interests/opinions of the other branches were adequately protected by those other doctrines you cited. Putting aside legal formalism here for a moment, I would, at least on a rhetorical level, I'd like to see the discussion take place.

Perhaps, with more thought, I could think of way that such things would and should formally factor into the legal test. But my initial thought is, yes, the Feds ought to get more consideration under the national consensus prong.
7.2.2008 3:02pm
Aaron Walker (mail):
Sarcastro

> Dave N, disagreement clearly isn't enough. Kennedy isn't just wrong, he has violated his oath of office, and that's the Objective Truth!

As per your name, sarcasm noted. So you think that the constitution changes according to consensus? Really?

No, that’s called not even faking it. In Kennedy v. LA, Kennedy eliminated any reasonable doubt that he was just making it up as he went along, and not actually, honestly, trying to read and abide by the constitution.

I mean really are you going to argue that Benedict Arnold is worse or more deserving of death than a man who raped his own 8 year old daughter so hard that the wall between her vagina and anus was ruptured? I am a good patriot, so I don’t look kindly on treason, either, but that is not even a close call to me. Even if you oppose the death penalty, its really hard to say that if treason is a capital offence, that child rape should not be.

Aaron
7.2.2008 3:15pm
Alex Blackwell (mail):
How about having G. Eric Brunstad file the petition for reconsideration?

Some may recall this was the lawyer Justice Kennedy pummeled earlier in the term during oral argument in Preston v. Ferrer for an "incorrect...statement in [his] brief."
7.2.2008 3:36pm
Sarcastro (www):
[@Aaron: IMO, the Constitution does not for the most part have a set meaning - it progresses with society as society's definition of the text progresses. For example, Those who ratified the 14th didn't want Brown's result. Not to mention Freedom of Speech Jurisprudence!

Basically, it seems to me to be a fixed text that changes as society's understanding of what the words person, speech, etc. change.

But I am not so hubristic as to assume that my interpretation of the Constitution is the Objective Truth and that any Justice who goes against it is doing so on purpose. I'll disagree, but I won't accuse those who do not adopt my interpretation of breaking their Oath.]
7.2.2008 3:54pm
Sarcastro (www):
[sorry, even out of character I guess I can't Stop randomly Capitalizing]
7.2.2008 3:57pm
ronnie dobbs (mail):

For example, Those who ratified the 14th didn't want Brown's result.


He's not just a VC commenter, ladies and gentlemen, he's also a time-traveling mind reader!
7.2.2008 4:03pm
Not in NC:
Maybe DangerMouse should file a bar grievance against K.
7.2.2008 4:09pm
Sarcastro (www):
Curses! I've been foud out! And by someone named "ronnie dobbs" no less!

I assure you, I was not refering to the Civil Rights Act of 1875, which was passed in the same era and was so broad as tobe found unconstitutional, yet did not ban segregated schools.
7.2.2008 4:24pm
Sarcastro (www):
Hey whaddya know, the 1868 Congress (and all of its successors) authorized and funded segregated schools in the District of Columbia.
7.2.2008 4:29pm
alexanorak (mail):
what are the chances Jeffrey Rosen will mention this screw-up in his next article fawning over Kennedy?
7.2.2008 4:45pm
Thomas_Holsinger:
Kennedy would have, and will, ignore this and most contrary evidence and contrary authority (including his own past opinions) whenever that suits whatever conclusion he wants to reach at the moment.
7.2.2008 5:00pm
OrinKerr:
If we impeach Kennedy for this error, don't we also have to impeach Alito for making the error in his dissent?
7.2.2008 5:01pm
Alex Blackwell (mail):
If we impeach Kennedy for this error, don't we also have to impeach Alito for making the error in his dissent?

Sure, and while we're at it, let's disbar all of the lawyers involved, including amici.
7.2.2008 5:04pm
OrinKerr:
Alex Blackwell,

Yes, absolutely! They all must go down to stop the corruption inherent in the system. Wait, now I'm beginning to sound like Sarcastro myself.
7.2.2008 5:05pm
DangerMouse:
Yes, absolutely! They all must go down to stop the corruption inherent in the system. Wait, now I'm beginning to sound like Sarcastro myself.

"I'm in favor of repealing Article 3."

Am I being sarcastic, or not?
7.2.2008 5:10pm
disgusted_by_Louisiana (mail):
The degree of opposition here to this common-sense ruling vindicating our society's fundemental decency is truly shocking. Louisiana, if permitted do go down its barbarous path, would put this defendant in a WORSE place (a coffin in the ground) than what he did to the victim (she, after all, still lives). I am so sick of people whining about what Kennedy did to the victim. Has anyone actually noticed that the 8th amendment only restrains state action? Whether the defendant's conduct could be characterized as "cruel and unusual" is simply irrelevant. How is it that we have gotten so politically correct about rape and sex crimes that we have lost touch of the fact that causing a death is qualitatively worse than causing injury. That is all that happend here. Kennedy injured this victim, physically and emotionally. Grievously injured, yes. But he did not kill her. Trying to equate what Kennedy did with causing death is absurd on its face, and I want to call all you hysterical lunatic conservatives out on that point right now.
7.2.2008 5:20pm
wfjag:
ronnie dobbs wrote:


For example, Those who ratified the 14th didn't want Brown's result.

He's not just a VC commenter, ladies and gentlemen, he's also a time-traveling mind reader!


I think I'd be careful of the sarcasm on this point. Justice John Marshall Harlan (aka, the First Justice Harlan and aka "The Great Dissenter") dissent in Plessy isn't that far off of what was held in Brown 60 years later. He also was the first Justice to contend that the Bill of Rights (in its entirety - no selective incorporation) was incorporated into the 14th Amendment and applied to the states. Although a Union Colonel during the Civil War, he came from a wealthy Kentucky slaveowning family, and owned slaves. So, he wasn't exactly from the wild-eyed fringe of his time.

Hence, from a historical perspective, there was at least one Sup.Ct. Justice who at about the time the Civil War Amendments were adopted believed that "equal" meant "equal".
7.2.2008 5:23pm
Brian G (mail) (www):
It's all about the narrative. Facts are merely inconvenient things when Kennedy's legacy in the law schools as the champion of the piecemeal elimination of the death penalty is at stake.
7.2.2008 5:27pm
Andrew Hyman (mail) (www):
Is there some principle of constitutional law that it's "cruel" to inflict a punishment that is more severe than the offense?

If I am arrested for stealing a candy bar and am ordered to pay restitution, is it "cruel" to punish me further? Of course not.
7.2.2008 5:40pm
p. rich (mail) (www):
How could a rigorous search for subject-relevant law(s) not have turned up something pointing to the UCMJ? Is there an approved system everyone (lawyers and the courts) uses which deliberately and selectively excludes certain information sources? I would think a comprehensive, effective search and retrieval system would be absolutely essential to the practice of law. Or are we great unwashed supposed to be impressed by the endless rows of expensive books on endless shelves in endless law offices? Quality by the yard...
7.2.2008 5:53pm
cboldt (mail):
-- I would think a comprehensive, effective search and retrieval system would be absolutely essential to the practice of law. Or are we great unwashed supposed to be impressed by the endless rows of expensive books on endless shelves in endless law offices? --
.

Mistakes happen. Most of them are inconsequential, meaning they don't affect the outcome. But when a decision hangs on a finding, the research is reasonably expected to be deeper.

.

I made a practice of checking cites (in cases) for the propositions those cites were represented as embodying. I hesitate to affix a label, but "dishonest," "misrepresenting," and "outright lying" come to mind as being the case, and those instances are NOT hard to find. They aren't the rule, of course, but they aren't rare.

.

In legal briefs and motions, well, the two sides are fighting, so one would EXPECT to find cases being misrepresented. Judges and their clerks are supposed to pierce the surface of the argument, but their productivity is measured too.

.

One of many dirty little secrets is that a significant fraction of the practice of law is driven by the skill (read $$$$) of the advocate; and the outcome bias of the judge. The great unwashed masses are supposed to just be awed and/or baffled by bullshit.
7.2.2008 7:35pm
Public_Defender (mail):

It's all about the narrative. Facts are merely inconvenient things when Kennedy's legacy in the law schools as the champion of the piecemeal elimination of the death penalty is at stake.


It seems that facts are "merely inconvenient things" to Kennedy's critics. Alito made the same mistake that Kennedy made. No government lawyer caught it. Anyone who implies that this was an intentional error shows that they are either dishonest or ignorant of how litigation works.

Sometimes lawyers make mistakes. If the other side doesn't catch it, sometimes a court repeats the error, even in the Supreme Court.

As Scalia has pointed out, the Supreme Court isn't final because it's infallible, it's infallible because it's final.
7.2.2008 8:49pm
Alex Blackwell (mail):
As Scalia has pointed out, the Supreme Court isn't final because it's infallible, it's infallible because it's final.

Many people have pointed that out, including me, but it was Justice Robert Jackson who first wrote it in Brown v. Allen over a half century ago.
7.2.2008 9:00pm
Thomas_Holsinger:
The Supreme Court is final only until it isn't. "Those whom the gods would destroy, they first make mad."

At some point we will have a President who will invoke separation of powers, fight for his office and tell Congress to impeach the Supremes, impeach him or do nothing but watch while he defies contempt of court.

This would require a President with energy, which is the major reason hy it hasn't happened under the current President.
7.2.2008 10:50pm
Tony Tutins (mail):
The Constitutional issue before the Court was cruel and unusual punishment. Showing that the death penalty for child rape was neither cruel nor unusual was Louisiana's responsibility. The USSC is not Small Claims Court, where the judge might feel that he should in fairness compensate for the inadequacies of the parties.

None of my attempts at researching the law on Lexis or Westlaw have turned up references to the UCMJ -- it is a different world. And it is perfectly reasonable that soldiers under military discipline be punished more harshly than civilians for comparable offenses -- slacker Pvt. Slovik would have simply been fired in civilian life, but as a soldier was executed for refusing to do his job.

Finally, one of the clear indicia of being an unusual punishment is infrequency. A soldier's being executed at the time of the Bay of Pigs invasion lacks contemporary relevance. The case of Benedict Arnold, much, much less. Six, even seven jurisdictions out of 52 allowing for the death penalty does not make it usual, especially because they haven't carried it out.
7.2.2008 11:26pm
PersonFromPorlock:

...and I want to call all you hysterical lunatic conservatives out on that point right now.

Gosh, Winston, I don't think you understand us Raving Righties very well. It's not about tit-for-tat; it's about Kennedy and the rest of us sharing a common humanity which is demeaned by his presence. Letting him live lowers 'the human standard' that defines us all, more than killing him does.

It takes a special effort for someone to prove that he's a human pollutant but it can be done. But the capital offense isn't the criminal act that brings him to notice, it's being the sort of person who'd do the act. By (a) raping (b) his daughter and (c) severely injuring her for (d) his own momentary pleasure (e) without regard for the damage pain and betrayal would do to her psyche, Kennedy showed himself to be far viler than most murderers.

Odds are he won't live long in prison anyway; even convicts have standards.
7.2.2008 11:46pm
George Weiss (mail) (www):

OrinKerr:
If we impeach Kennedy for this error, don't we also have to impeach Alito for making the error in his dissent?



actually, Alito does NOT make the error in his dissent. He says that 6 out of 50 states have authorized it. He says nothing of DC or the Federal government.

Kennedy does say the federal government does not have the provision. If you include the UCMJ, this is incorrect, true. But nowhere does he count the jurisdictions as a whole and say 6 out of 52 when it should be 7 out of 53. If read to be speaking only of civilian law, there is no error there either.
7.3.2008 2:31am
Ohio Scrivener (mail):
"Alito made the same mistake that Kennedy made."

However, the error here seems much graver for Kennedy. Kennedy is claiming a national consensus while ignoring a recently enacted federal law going the opposite direction. In contrast, Alito, who also failed to cite the statute, now has more ammunition for his dissent and his position is, if anything, strengthened.

At the end of the day, it looks as though the Court and counsel should have done more to research federal law(and perhaps the Solicitor's office should have done more to alert the Court to the federal law at stake). Since those things didn't happen before the Court issued its decision, leave it to a blogger to discover a federal law that inconveniently undermines the supposed national consensus relied upon by the majority.

And I certainly agree with those who say this discovery wont make a difference. Facts may inconvenience, but do not change, outcome-based decision making.
7.3.2008 4:03am
Public_Defender (mail):
Me: As Scalia has pointed out, the Supreme Court isn't final because it's infallible, it's infallible because it's final.

Response: Many people have pointed that out, including me, but it was Justice Robert Jackson who first wrote it in Brown v. Allen over a half century ago.


Thanks for the correction.
7.3.2008 5:40am
martinned (mail) (www):
@Anon #319: I think I would agree with you, they should at least talk about the fact that they're disagreeing with the other two branches.

I guess, though, that the Court's general approach to overruling the other branches has its roots already in the Constitution itself, and in Marbury v Madison, which is so old that it's almost part of the Constitution itself. (In the UK, they would call a ruling like that part of the unwritten Constitution.)

The wiki page about Marbury quotes Federalist No. 78:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents

I could quote from Marbury itself, but the ruling seems to assume rather than argue the power of the courts to annul laws, and in any event the case is so famous that most quotes are already familiar enough.

FYI, in my country, the Netherlands, the constitution explicitly forbids the courts from "entering into the constitutionality of laws". They have to apply the law as written, and if they think it might be unconstitutional, they should simply interpret it to minimise the problem.

(Perhaps unfortunately, this rule is gravely undermined by the fact that treaties, including human rights treaties, have direct effect and can therefore be the basis for a court decision refusing to apply a statute.)
7.3.2008 7:17am
Aaron Walker (mail):
Sarcastro

> IMO, the Constitution does not for the most part have a set meaning - it progresses with society as society's definition of the text progresses.

The I presume you would never support judicial review, then... I mean seriously, our society has evolved to the point that its own laws doesn’t reflect its zeitgeist?

Somehow I doubt that, though.

> For example, Those who ratified the 14th didn't want Brown's result.

Not true.

> Not to mention Freedom of Speech Jurisprudence!

We are less free to speak on political matters today, than we were 200 years ago. Progress, or regress?

> But I am not so hubristic as to assume that my interpretation of the Constitution is the Objective Truth and that any Justice who goes against it is doing so on purpose.

Maybe there is a valid argument to be made for why execution for child rape is unconstitutional, but Kennedy didn’t make it.

> the 1868 Congress (and all of its successors) authorized and funded segregated schools in the District of Columbia.

So a failure to exercise dominion is the same as approval. Interesting...

Talk about cherry-picking. And the 1870’s law on the subject was passed after the father of the Fourteenth Amendment, Thaddeus Stevens, had passed on. There are entire articles discussing the founding generation’s feelings about desegregation, and the evidence that they supported it was overwhelming. If you want an example, there is an orginalist argument for brown in the book “what brown should have said.”

Orin

> If we impeach Kennedy for this error, don't we also have to impeach Alito for making the error in his dissent?

I don’t support impeachment, but let me be devil’s advocate here: Alito’s error was a harmless one, and Kennedy’s was not. If Alito had won the day, then this would not be cause for reconsideration.

Disgusted

> The degree of opposition here to this common-sense ruling vindicating our society's fundemental decency is truly shocking.

The man raped his own 8 year old daughter so hard it ruptured the wall between her vagina and her anus. Where does her dignity come into your analysis? Not at all, apparently.

> Louisiana, if permitted do go down its barbarous path, would put this defendant in a WORSE place (a coffin in the ground) than what he did to the victim (she, after all, still lives).

The death penalty is not limited to situations that cause death. For instance, treason. Now who is worse? The man in this case, or Benedict Arnold. In my informal poll of people in my office, it is unanimously the defendant in the Kennedy case.

Or take an example from Alito’s opinion. The defendant in this case, versus John Doe who robs a bank and during the robbery his conspirator shoots a security guard, against the wishes and over the protests of Doe. Which is worse? And which, under Kennedy’s opinion, can be executed? (Hint: not the rapist.)

And I am frankly disgusted at how cavalier you are about what he did. Suppose you had an 8 year old daughter and she was about to be raped and the only way to stop it would cause you to die? Would you do it? Would you give up your life to protect her?

I sure as hell would.

> Has anyone actually noticed that the 8th amendment only restrains state action?

No one is arguing that the defendant violated the 8th amendment. But you admit that the impact on the victim is relevant, which makes your argument doubly silly; otherwise you wouldn’t keep saying, “he didn’t kill her.”

By the way, if she slits her wrists as a teenager, do you support the death penalty then?
7.3.2008 10:06am
Aaron Walker (mail):
Disgusted

Let me add that I find it strange in a society that tells us that there are some things more valuable than life, that you think it is common sense to say there is nothing worse than dying.
7.3.2008 10:11am
Hoosier:
"IMO, the Constitution does not for the most part have a set meaning - it progresses with society as society's definition of the text progresses. "

And yet every time this question arises here, I post the same question, and get no response. Still, here I go again:

This raises the epistemological question, namely, how can the Court KNOW what "society's definition of the text" currently is?

I'm concerned that the intellectual justification for 'judicial activism' relies on a kind of gnostic epistemology. Am I wrong?
7.6.2008 7:05am