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 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.