Patterico's Pontifications

7/2/2008

Blogger Catches Justice Kennedy With His Pants Down

Filed under: General — Patterico @ 12:00 am

Linda Greenhouse — yes, that Linda Greenhouse — reports:

When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.

This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.

It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.

The lawyers missed it. The law clerks missed it. The justices missed it.

Who caught it?

A blogger.

A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty.

The post is here.

Don’t mistake this for a triumphal claim about bloggers as a class of persons. Bloggers are just people with blogging software and a particular field of expertise.

This is just a reminder that the collective knowledge of the people can exceed the knowledge of nine Supreme Court justices.

It’s a lesson in humility that has far-reaching implications beyond this one embarrassing example. It’s a lesson, moreover, that the justices would do well to remember.

Thanks to dana.

52 Responses to “Blogger Catches Justice Kennedy With His Pants Down”

  1. Have read a number of apologetics attempts for the utility of the work of bloggers in our current journalistic and political system but this is one of the more concise and least blog-aggrandizing ones.

    Given, too, that it concerns a very controversial case, and a fact linked to it that is at once easily understood and shocking (both in the ease with which it could have been caught and in the gravity of the consequences of the mistake), am hoping this post will be used as a very linkable example, like the one about Bush’s National Guard faked memo, for future discussions in the media about what service bloggers perform in the current world.

    no one you know (1ebbb1)

  2. This is a real screw-up. Fundamentally, it completely deligitimizes the decision. The national government has authorized the death penalty for capital rape. So how can there be a national consensus against it?

    Law (62ca0c)

  3. Actually the President, not Congress, sets the penalties for crimes in the military under the Uniform Code of Military Justice. And we all know what a broad national constituency he has these days.

    Hugh Janus (42a5df)

  4. This begs the question ..

    What do Al Gore and raped children have in common ?

    Neo (cba5df)

  5. All laws President Bush has signed into law should not be considered valid because he has a low approval rating, at least by Hugh’s standards. When Congressional ratings are at 11 percent, they should not even bother to show up for work. Not a bad idea, actually.

    JD (5f0e11)

  6. That Congress has authorized it means that Congress has weighed in on the national consensus. This decision is illegitimate.

    Law (62ca0c)

  7. New ads for the Supreme Court:

    “The Supreme Court: A National Consensus of One.”

    Attila (Pillage Idiot) (88e3e3)

  8. I didn’t know that “Military Justice” applies to civilians. How does that matter?

    Psyberian (9f6817)

  9. Law – None of that matters because President Bush’s approval ratings are low, dontcha know?

    JD (5f0e11)

  10. Pysberian – intentionally obtuse? Under the jurisdiction of the federal government ring a bell?

    JD (5f0e11)

  11. I didn’t know that “Military Justice” applies to civilians. How does that matter?

    It establishes a precedent of punishment for a particular crime that is not exclusive to military personnel.

    proof (4721a6)

  12. How does one blogger’s good catch qualify as “the collective knowledge of the people?” Seems like you declined to say something about bloggers as a class in favor of saying something about some undefined class, when really the credit goes to one of those “ordinary people with blogging software.” An individual with a newer means of getting his knowledge out there to the rest of the people.

    Anwyn (0ab609)

  13. not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.

    Pysberian – Where in there does it say anything about civilians being held to UCMJ standards?

    JD (75f5c3)

  14. JD, I’m not an attorney – so no, I wasn’t being obtuse.

    But the military can do pretty much what it wants independent of civilian law. The penalties are often much harsher in the military since military personnel become the government’s property. So in my non-lawyer mind, military law should not have any precedence in this situation. Civilians are not owned by the government (ideally, it is vice-versa).

    Psyberian (9f6817)

  15. Anwyn,

    I’m having trouble understanding where we supposedly disagree.

    Patterico (cb443b)

  16. I am not a military lawyer but my view of military justice is that it is not as harsh as civilian justice. Its concern is discipline and military order and not “law and order” — punishment, retribution, etc..

    nk (16accd)

  17. IANAL either, Pysberian, and I apologize for being a bit harsh with my language. I do not see anything, anywhere, that suggests that the UCMJ should provide precedent here. The underlying issue is that Kennedy contended that this type of punishment had never been condoned under the jurisdiction of the federal government, a demonstrable falsehood.

    JD (75f5c3)

  18. Psyberian: Can you provide some examples of “much harsher” penalties for similar crimes perpetrated by members of our military?

    Old Coot (85f458)

  19. Yawn… SCOTUS ignoring yet another Congressional statute. After Boumediene, I would think the Black Nine … err… Five have pretty much put us all on notice that not only the Executive branch but the Legislative branch have been rendered pretty much irrelevant.

    And people think I’m an extremist when I refer to Marbury as a judicial power grab :p ‘Unitary judiciary’, anyone?

    Heh.

    Cassandra (6f0d0c)

  20. Patterico–I don’t think it’s a matter of disagreement, but I object to a description: you go a little out of your way to disclaim praise of bloggers in general while putting the credit on some nebulous mass of “the people” instead of on the individual blogger.

    Anwyn (0ab609)

  21. It would appear that Kennedy’s error is in line with his penchant for making new interpretations according to his personal biases. But I’m not a lawyer, so perhaps I’m thinking too politically in this matter.

    Dmac (ea35f7)

  22. Forget the court missing it, how did my Attorney General and all the amicus briefs on our side miss it?

    PatHMV (653160)

  23. Cassandra — I’m with you. Marbury is over-rated.

    Publius (71613a)

  24. Actually the President, not Congress, sets the penalties for crimes in the military under the Uniform Code of Military Justice.

    Bullshit. Congress has explicitly been given the authority to “make Rules for the … Regulation of the land and naval Forces” (Article I, Section 8). Making the rules means the authority to set the punishment for violating those rules. Legislating is not a two-branch compromise.

    The Executive Branch’s sole options are to sign said legislation or veto it. He can advise, suggest, criticize or complain, but he only gets to decide whether to sign or veto.

    I would make the observation here that you have obviously never served, but you have already proven it beyond the ability of any poor words of mine.

    Drumwaster (5ccf59)

  25. capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.

    What does “evolving standards” have to do with interpreting what the Constitution actually says? When the Constitution became a living breathing document, it became a dead letter in the hands of activists. The legislature is supposed to keep track of “evolving standards.” The courts are supposed to hold the legislature’s product up to the light of the constitution and see if it passes muster.

    Constitution? Long gone.

    quasimodo (edc74e)

  26. Justice Kennedy caught with his pants down on the matter of rape? Ouch!

    dchamil (44dca7)

  27. To clear up some confusion caused by Hugh Janus’ comment, the UCMJ is adopted by Congress pursuant to its authority to make rules for the regulation of the land and naval forces. Article 56 of the UCMJ (also known as 10 USC s. 856) provides that: “The punishment which a court-martial may direct for an offense may not exceed such limits as the President may prescribe for that offense.”

    Art. 120 (aka 10 USC s. 920) defines the offense of rape and also “carnal knowledge.” Subsection a of Art. 120 provides for the death penalty for all forcible rape (sexual intercourse without consent by force), regardless of the age of the victim, and specifically states that the offender shall be punished “by death or such other punishment as a court-martial may direct.” The latter reference is to the penalties to be established by the President pursuant to the authority of Article 56. I suspect, but will defer to any military lawyers, that there’s a well-established precedent somewhere that says that the death penalty can only be imposed if specifically authorized by the UCMJ, and may not be imposed as a penalty in any other offense, regardless of the President’s penalty schedule.

    At any rate, Art. 120 also creates the offense of carnal knowledge in subsection b, which provides in part that having sex with someone under 16 is an act of carnal knowledge, which shall “be punished as a court-martial may direct.”

    As noted by the original blogger, a 2006 Act of Congress provided 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.”

    Thus, while Hugh Janus is correct as a general matter that the President establishes most penalties under the UCMJ, he is incorrect as regards this penalty, which was set by Congress (albeit with the proviso that the President could reduce the possible sentence if he chose to).

    PatHMV (653160)

  28. “…the chance that the court would reconsider the decision was “extremely unlikely” even if Louisiana brought the omission to the justices’ attention. A member of the majority would have to change his mind, but it’s obvious that both sides gave this case very careful consideration…”

    That the court, especially this court, doesn’t have a compelling obligation to reconsider is troubling. Justice Kennedy made a false assertion, and a critical one at that – one that was central to his determining a final decision. I’m thinking that the one of the majority to make the decision to reconsider should be Kennedy himself.

    Dana (a61bbb)

  29. I don’t know about the laws in the military today (I’m one of the old folks who grew up when the law was the law) but at one time the penalty could be ‘death’ for an enlisted man having sex with the wife of an officer even if both were willing. Ever been a civilian law to match that. If there was such a civilian law for employee/boss, today there would be a line at the gallows. I didn’t waste my time when the military was wasting my time, I read the UCMJ through and through, several times. Do we still have a justice department? The SCOTUS and the entire justice system is now a joke.

    Scrapiron (d671ab)

  30. Justice Kennedy was acting in the highest liberal tradition–just making stuff up as he goes along.

    Mike Myers (31af82)

  31. Yeah, it’s a nice catch by a blogger, but utterly irrelevant to the decision.

    Does anybody think Kennedy is thinking “D’oh! If only I had known of this, I would have voted the other way”?

    steve sturm (a0236e)

  32. “A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty.”

    More to the point, does a reading of the prior law and this one, show it evolved towards this standard of decency or away from it.

    Dusty (e28a9f)

  33. This is just a reminder that the collective knowledge of the people can exceed the knowledge of nine Supreme Court justices.

    I’d like to make the (rather obvious) philosophical point that the “collective knowledge of the people” is the underlying reason why we have trial by jury instead of by a judge. I know, I know, other jurisdictions with civil law traditions have trial by judges but their whole system works differently. As for myself, I’d prefer to stick with the jury system.

    ExRat (775497)

  34. I was going to get into the whole “President sets the penalties” thing, but people far smarter than me have addressed that. My only addition there is that the Congress has permitted the President to serve as their proxy in determining the schedule of punishments, and could withdraw that power.

    My other point is the comment by psyberian that service members are the government’s property. ABSOLUTELY NOT! They are members of the service, not property. They willingly agree to place themselves under the jurisdiction of the UCMJ. It’s right there in the Oath of Enlistment. They surrender no constitutional rights. The UCMJ provides the same protections for a persons constitutional rights as any other court.
    If you think this change of jursidiction is odd, consider this. You willingly place yourself under a different jurisdiction every time you cross a state line.

    XBradTC (e3b00a)

  35. As I wrote in an earlier thread, Kennedy’s “evolving standards” argument fails because the trend has actually been to ADD capital punishment for child rape. Indeed, our evolving standard of decency has seen us place more and more significance on crimes against children, and consequently, impose greater penalties upon those who harm them. If that isn’t the evolving standard, then I don’t know what is.

    XBradTC (e3b00a)

  36. This is just a reminder that the collective knowledge of the people can exceed the knowledge of nine Supreme Court justices.

    Sadly, we seem to find ourselves in a time when the so-painfully-obvious-it-shouldn’t-need-be-said still needs to be said.

    ThomasD (211bbb)

  37. I note, however, that the Times did not even state the name of the blog. Also, I saw an embedded link in the name of the post included in the online version of the story, but it idiotically pointed me to stories in the Times archives about the Supremes music group. The Times’ self-immolation continues.

    roger rainey (04a4a6)

  38. The lawyers missed it. The law clerks missed it. The justices missed it.

    Wow, those college law professors really know how to teach law.

    Maybe if the university system rid ended tenure then there would not be so many clowns graduating.

    Who is the law for anyway? Protecting rapists, murders, thieves, leftist politicans, con artists, Jihadists?

    syn (1017f1)

  39. wow
    conservatism really is a mental disease

    eugene debs (42a385)

  40. Roger… in the online version, there is a link to the blog post, and while it doesn’t state the name of the blog, it does state the name of the blogger (which is probably of greater relevance, and he’s not tried to be anonymous).

    The provision was the subject of a post over the weekend on the blog run by Dwight Sullivan, a colonel in the Marine Corps Reserve who now works for the Air Force as a civilian defense lawyer handling death penalty appeals.

    Mr. Sullivan was reading the Supreme Court’s decision on a plane and was surprised to see no mention of the military statute. “We’re not talking about ancient history,” he said in an interview. “This happened in 2006.”

    His titled his blog post “The Supremes Dis the Military Justice System.”

    I was, frankly, rather impressed to find a link to the actual post in an official “column” for the Times, an opinion piece meant for the printed version, not just the on-line version.

    PatHMV (0e077d)

  41. The decision should be ignored, and the five who made the decision impeached.

    Steve39 (bb1c9d)

  42. –conservatism really is a mental disease

    Hmmm…. This comment is so unrelated to the thread as to suggest that the commenter is a victim of mental disease himself. Poor guy, can you find a nurse to give you your meds,,, btw the ward is locked.

    Sigmund Freud (9e9332)

  43. We seem to have this obsession with the sanctity of criminal lives. Either we only exist from birth to death, or we live on in another realm or dimension after physical death. If we have no life after this one, what greater crime is there than for someone to destroy the life of another who has done nothing to him? And doesn’t simple justice dictate that someone who does that forfeit his own chance for more time in mortality? What then of someone who rapes and injures a child or so damages another person so that he/she is unable to enjoy a normal life free of fear and mental illness?

    The real issue should be, not the punishment, but how sure we are of the guilt of the person accused. It seems to me that cruel and unusual has more to do with the public’s sense of justice than with the kind of philosophical theories that seem to occupy the courts.

    Most people would agree with the scriptural saying that someone who harms “one of these little ones” “it were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea.” What implications this would have for waterboarding of terrorists to gain intelligence, I’ll leave to the legal experts.

    AST (d3a2dd)

  44. According to the Constitution (Article III Section 1), a Supreme Court Justice in the absence of “good behavior” may be impeached. Whaddyathink?

    Jim Newell (be1111)

  45. The comment above was cited by Instapundit as “a factual error at the Supreme Court”. The reference is to the (so far uncontested) fact that Justice Kennedy appears to be unaware of the provisions of the Uniform Code of Military Justice. I haven’t seen any argument in this thread that disputes this. Note to bozos: the question is not whether the UCMJ is good or bad, it is whether J. Kennedy is aware of it.

    Pink Pig (2b901e)

  46. Of course, it’s not the first instance of a factual error on the part of a Supreme Court Justice, and unfortunately it probably won’t be the last.

    Pink Pig (2b901e)

  47. Does anybody think Kennedy is thinking “D’oh! If only I had known of this, I would have voted the other way”?

    Well, nobody knows what Kennedy thinks (if that is the word for it). He’s pretty much sui generis. I somehow doubt that he’s going to apologize for it — Supreme Court Justices never do.

    BTW am I supposed to know what magic incantation will turn the above quote into a real quote?

    Pink Pig (2b901e)

  48. We seem to have this obsession with the sanctity of criminal lives.

    Uh, no. It’s more of a concern about the extent to which the government can use due process to separate a citizen from his or her one and only life. As a citizen, it should concern you as well.

    Was this a fair catch? Yes it was. Was it meaningful? Not very. I would suspect a cite of the UCMJ regardless of which way it went. It’s one thing to submit oneself to the discipline of the UCMJ when one volunteers to be in the military. It’s another thing altogether to be be involuntarily subjected to such relatively perfunctory justice under civilian government.

    yours/
    peter.
    yours/
    peter.

    peter jackson (8e9c0f)

  49. Peter, as I mentioned, you voluntarily subject yourself to another jurisdiction every time you cross a state line. And yet, the same constitutional test applies when we examine state court rulings and UCMJ cases. It is either constitutional or it isn’t.

    XBradTC (e3b00a)

  50. As for myself, I’d prefer to stick with the jury system.

    Comment by ExRat — 7/2/2008 @ 9:37 am

    hmmmm, trial by Judge, trial by jury.

    It would depend if I was innocent or guilty.. :)

    rgaye (64d9e7)

  51. Or, more worrying, is that the SCOTUS staff does not do a keyword search of the US code… perhaps it is beyond scholarship to actually use the following as a sort of ‘hey, is it in the code?’ sort of deal: ‘child rape site:law.justia.com/us/codes/’

    Removing the quote marks at the search engine of your choice, of course… if it has site specific look-up capacity, of course. That is, actually, far more worrying that none involved with the case, up and down the line, did that.

    And you can do similar work to cite precedent of SCOTUS and lower court decisions, too… that is the power of keyword searching applied to specific parts of the web and is a powerful tool for analysis. With so much material becoming available, especially the actual historical public record, this becomes a prime skill for looking at the law. That none employ it for basic background information in this case? That tells me much from all involved. One would think that instituting a basic part of research at the SCOTUS by those working for the Supremes would be to think of the salient keywords and apply them to the code and previous SCOTUS decisions in the easiest to obtain format that points to the written works digitized for ease of searching.

    ajacksonian (87eccd)

  52. To understand this oversight (if it was one), you need to appreciate the completely different track that bills concerning military justice travel through Congress. Military law is the exclusive province of the Armed Services Committees while “normal” federal statutes are typically handled by the Judiciary Committees. Even with the 2006 amendment, the President still can set the maximum punishment for any crime in the military. But it’s good to know that the penalty for rape cannot exceed death in the eyes of some in Congress. That should be sufficient even for most of you diehards.

    Hugh Janus (42a5df)


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