Patterico's Pontifications


Justice Department Seeks Rehearing in Case Ruling Death for Child Rape Unconstitutional

Filed under: Constitutional Law,Court Decisions,Crime,General — Patterico @ 7:05 am

The Justice Department yesterday asked the Supreme Court to rehear Kennedy v. Louisiana, the case that ruled unconstitutional the death penalty for child rape.

According to SCOTUSblog, the move is especially unusual because the Justice Department was not involved in the case the first time around. But after a blogger noted that the Supreme Court’s finding of a “national consensus” against the death penalty for child rape had ignored Congress’s specific and recent approval of that penalty in the Uniform Military Code of Justice, the omission made it to the front page of the New York Times. And now, the Justice Department has decided that it might be time to get involved.

The motion says:

Because the Court did not have a complete description of the relevant legal landscape, the Court’s decision rests on an erroneous and materially incomplete assessment of the “national consensus” concerning capital punishment for child rape. That error undermines the foundation for the Court’s decision.

Indeed. Not that it will make the slightest difference to Anthony Kennedy, the Court’s worst justice.

27 Responses to “Justice Department Seeks Rehearing in Case Ruling Death for Child Rape Unconstitutional”

  1. I have heard that D.C. is flouting the Supreme Court decision in Heller .

    Does this mean Louisiana can do the same with the Kennedy case?

    Michael Ejercito (a757fd)

  2. And here they went and passed that castration law for nothing, it seems… 🙂

    Scott Jacobs (fa5e57)

  3. For any appellate specialists out there, how does standing work in this case, or does standing even apply? It seems odd that a non-party could ask for rehearing, but perhaps there are special rules when it is the Supreme Court and/or it is the Solicitor General asking for rehearing.

    This will most probably be summarily denied without explanation, but I wonder if the Court actually could rehear this if it wanted to based on this motion.

    Aplomb (b6fba6)

  4. Does the DOJ getting involved increase or decrease the likelihood of this being re-heard?

    JD (75f5c3)

  5. I agree with DRJ, but here’s exactly what will happen, in somewhat more detail:

    The motion for rehearing will be granted. The Court will accept additional briefing limited to the subject of the capital rape provisions of the UCMJ. I doubt that the Court will agree to hear further oral argument. Justice Kennedy, joined by Justices Stevens, Souter, Ginsburg, and Breyer, will either issue a supplemental opinion or a slightly re-written one. Either way, there will be one or perhaps two paragraphs which will say that Congress’ determination of what constitutes an appropriate punishment for child rape for members of our military forces under the UCMJ is not a significant indicator of the “evolving standards of decency” upon which the Court must base its ruling with respect to civilian laws like the Louisiana statute. Justice Kennedy will point out, correctly, that there are many respects in which both the procedures and punishments prescribed by the UCMJ are more harsh than their civilian equivalents. The result — the reversal of the judgment of the Louisiana Supreme Court, which affirmed the death penalty — will therefore remain the same.

    If the DoJ wanted to perform a useful service to American jurisprudence and justice, it would not only bring the UCMJ provision officially to the Court’s attention, but make the further argument that despite the differences between the UCMJ and its state and federal civilian counterparts, we don’t in fact apply an entirely different notion of what’s barbaric and what’s civilized to our military forces. I don’t expect the DoJ to make that argument, however. Its reason for urging re-hearing is, I think, a fussy one — the Executive/Commander in Chief doesn’t want the bound version of U.S. Reports to contain such an obvious factual error about the status of a federal law; and it will be entirely satisfied by a correction, and a footnote confirming that the present case hasn’t expressed or implied any opinion as to the constitutionality of that provision of the UCMJ. I seriously doubt that the folks at DoJ who approved filing this motion have any burning desire to vindicate the right of states to make child rapes punishable by the death penalty.

    Beldar (0bd1bc)

  6. Well. I ought to have followed DRJ’s link before writing that comment. Having now read the DOJ’s motion, I need to amend my “fussy” remark. The DoJ’s filing actually does make a substantive argument that the Legislative and Executive Branch’s approval of capital punishment under the UCMJ for child rapists should indeed be considered in the Court’s evaluation of “evolving standards of decency.” What the filing does not do is anticipate, and then rebut, the obvious response that Justice Kennedy will make, which is that what’s constitutionally permissible for soldiers and civilians may be entirely different.

    Beldar (0bd1bc)

  7. I also should pay more attention to who’s posting here. Sorry, Patterico, for giving DRJ credit for this post (although I suspect her, your,and my take are all pretty much in sync).

    Beldar (0bd1bc)

  8. Following up on Beldar’s first comment (the one before all his apologies), I agree there won’t be a reversal, Kennedy isn’t going to pull an Emily Litella.

    This is a great example of Kennedy’s (and the rest of the Court’s) practice of ‘decide first, justify later’. Kennedy didn’t ban executing child rapists because of ‘evolving standards of decency’, it wouldn’t have mattered if all 50 states allowed the practice, Kennedy would simply have had his clerks go looking for some other reason to cite. Having cited those standards, he’ll have to jump through some hoops, but as Beldar predicts, Kennedy will prove himself more than capable and willing to doing so.

    steve sturm (a0236e)

  9. Alpomb – I suspect the Gov’t is simply supporting Louisiana’s request for rehearing, similar to an amicus brief. The Gov’t has a significant interest in the outcome since there is a federal statute that is implicated by the decision.

    WLS (8b22c0)

  10. So even if the motion is granted and the case is re-heard and the result is overturned … it will only reinforce the reasoning that Justices may “find a “national consensus” where they choose to look. Correct?

    If there were a true national consensus, one with legal weight, wouldn’t/shouldn’t it take the form of a constitutional amendment? If the word “consensus” has any meaning, then an amendment would be a breeze.

    Cuz otherwise, you’re kinda accepting that, yes, the constitution can be overridden on the basis of the Justices’ reading of public opinion. And the fact that Kennedy in particular really mussed up on this case won’t change that legal principle, will it?

    ras (fc54bb)

  11. Are liberal judges even capable of feeling shame? If I were Kennedy, I would be humiliated.

    martin (30db2b)

  12. I do agree that the death penalty provision in the UMCJ does significantly undermine the “national consensus” argument. To be a bit fair to Kennedy, unless I’m mistaken I think that provision wasn’t pointed out until after the decision came down, meaning everyone missed it in the briefing, not just the Court in its own research. (I’m sure Scalia would have mentioned it if it were in the briefing.)

    Not that this has much to do with the merits of a rehearing, but it’s not like Kennedy willfully ignored the provision. Louisiana and the supporting amicus briefs are to blame for missing it if anything is.

    Aplomb (b6fba6)

  13. Martin: it’s not just the liberal justices, conservative judges have also made it up as they went along.

    steve sturm (a0236e)

  14. If even SCOTUS – and all its Justices and clerks, plus the US DOJ, plus just about every other commentator and participant in the case, etc – was unaware of this highly relevant information … can ignorance of the law be an excuse now?

    ras (fc54bb)

  15. I think that #8 Steve is right on point. Our Supreme Court liberals decide the outcome first, then come up with the rational to support their conclusion. IMHO

    J. Raymond Wright (d83ab3)

  16. Disrespect for, and a basic ignorance of, the military is a wide-spread societal problem, if this is any indication.
    People who set themselves up as final arbitrators of society should excercise more care in their work product.
    I wonder how many clerks at SCOTUS have even cracked the UCMJ – or those at the SolGen’s office?

    Another Drew (8018ee)

  17. Aplomb — it was Kennedy who relied so heavily on the “national consensus” crapola to justify his extra-Constitutional holding, so the failure to note the UCMJ provision passed by Congress falls directly on his head, and the other Justices that joined him.

    WLS (26b1e5)

  18. RE #13 BS

    Conservative justices are far more likely to believe the the constitution is set in semi-firm stone. Liberal judges are the ones who think “evolving standards” and world opinion matter to the SCOTUS.

    And NO conservative judge has been shown to be the ass that Kennedy was shown to be here. Or do you have examples besides the usual tired “(wiping snot from one’s nose) But they do it too”

    martin (30db2b)

  19. WLS # 17 — I disagree with that. Justices aren’t supercomputers who have all the law in their mental databases. They are old and experienced lawyers and jurists who have relied on younger lawyers to do their basic research for them for years. Even before they get to the Supreme Court they are reliant on very smart but mostly inexperienced young lawyers to turn up the law they consider.

    Whoever did the original research on the briefs on both sides aren’t the notable lawyers who argued the case or signed the amicus briefs. It was probably very smart but inexperienced lawyers to whom it didn’t occur to consult the UMJC. If it was anyone’s fault, it was the senior lawyers who actually signed the briefs in support of Louisiana who should have thought to check out the UMJC.

    And you especially can’t fault any Supreme Court justice for failing to research the law to turn up some provision that both sides failed to turn up. If whoever spending all the time and effort to bring a case to the Court can’t find a relevant legal point, you can’t expect the Court to find it. Judges at any level aren’t there to recreate and duplicate the efforts of both sides to figure out the best case for either side, they accept the competence of either side to present the best case and go from there.

    Also, justices rely on the absolute cream of the crop of law clerks to handle the research. A justice may go of on his or her own to research and pursue a point of law they don’t think is adequately addressed in the submissions or in what the clerks give them, but you can’t expect a justice of the Supreme Court to assume that everyone involved in a case, including the Court clerks, missed something important.

    It would actually be an interesting question to ask the Justices how much original research they do these days, and how comfortable they are doing it on computer, which is the only place an older lawyer or justice would come across the UMJC provision if they did take the time to do an exhaustive search. I think Roberts is the only one who would be young enough to be comfortable with the legal databases based on his own experience as a young lawyer to really be able to go out and do an effective search on the own, and even that is questionable.

    The fact is, the UMJC was an obscure provision that would have probably impacted the case if it were discovered but dozens of smart lawyers missed it too late. If you want to rank who was responsible for missing it, I would say anyone working on the Louisiana briefs or the amicus briefs in support, because if anyone had the responsibility to bring it to the attention of the court it was them. Then you can blame the law clerks for all levels, including the Supreme Court, who were charged with evaluating the law for the guidance of the trial judge and appellate justices. Finally, you can blame the justices themselves, for failing to trip over a provision of the law that the actual advocates of the case and the clerks who do all the research somehow missed, but I think the justices deserve almost no blame for missing it when the case has progressed this far. They have to expect that the issue has been exhaustively researched before they do their jobs, which is to weigh on it.

    Also, WLS, when you say “it was Kennedy who relied so heavily on the “national consensus” crapola to justify his extra-Constitutional holding, so the failure to note the UCMJ provision passed by Congress falls directly on his head, and the other Justices that joined him” I gotta ask, what do you think about Scalia? He launched an even more researched and reasoned dissent and he missed it too. If Scalia had found it, it might have made a different in the votes. Why is it not on Scalia’s head that he missed this too, if you are willing to heap all the blame on Kennedy’s head?

    Aplomb (b6fba6)

  20. Scalia doesn’t think that any argument involving current trends or opinions have a bearing on cases anyway, so why would he bring it up? Or is the majority required to refute the minorities opinions on the minorities terms?

    martin (30db2b)

  21. Conservative justices are far more likely to believe the the constitution is set in semi-firm stone. Liberal judges are the ones who think “evolving standards” and world opinion matter to the SCOTUS.

    “Evolving standards” is just a code word for the whims of the majority.

    Michael Ejercito (a757fd)

  22. I don’t know what the timeframe is, so this may be moot, but what if a number of states passed similar laws before the Supreme Court reconsidered the issue?

    I mean, if 20 or 30 did, the standard would be much evolved, no?

    MamaAJ (788539)

  23. martin, if Scalia had this provision to bash in the heads of the majority, of course he would use it. I would imagine there is no one on the Court who regrets the failure to turn up this provision more than Scalia. If he had it, he may have turned a vote, and if not he would have been able to write an even more blistering dissent that future Courts could use to overturn the opinion later. His only argument wasn’t that current sentiments shouldn’t be dispositive (he isn’t so lazy he would just stop there even if he thought that should be the end of the question), he also argued that even assuming the majority analysis was correct it was unsupported by actual current law and views. He didn’t stop at “don’t consider modern views”, he went ahead and argued “modern views don’t support this result anyway.” If he had a federal statute to back him up and knew about it, of course he would want to seek it out and use it.

    Also, it isn’t up to the majority or the minority to refute or even address other opinions, although they usually do of course. Rather each Justice is expected to come up with their own opinion. For convenience, people who generally agree will let one of them write an opinion and join it, with maybe a partial concurrence or dissent to explain how those in the majority or minority differ on some of the fine points. So Scalia’s job wasn’t to criticize the opinion of other Justices, it was to offer his own opinion with as much support in the law as possible. The dissent is expected to be as thorough in gathering and interpreting law and supporting the opinion as the majority.

    So if the UMJC provision is in fact important and dispositive to the issue, Scalia’s failure to find and cite it is equal to Kennedy’s or any of the other Justice’s failure to find it. As I said above, I don’t blame any Justice for missing it when the lawyers who were arguing the case missed it themselves. The Supreme Court shouldn’t be expected to be a legal research body, even if sometimes they feel the need to do some original research.

    Aplomb (b6fba6)

  24. Everyone connected with this case — at any level and in any capacity — is embarrassed by the screw-up. That includes every judge, every law clerk, and every lawyer who worked on it.

    When I was a law clerk for a Fifth Circuit judge, this was the kind of screw-up we most dreaded. At that level, it was the rare case in which the lawyers had researched and briefed the pertinent law thoroughly enough to suit all three judges on the panel.

    Indeed, I once worked on an en banc securities fraud case in which there were at least a dozen amicus briefs filed, in addition to the briefs filed on behalf of the parties by their very prestigious law firms; the case ultimately came down to an interpretation of an underlying contract, which was purely a matter of New York state contract law. And yet neither the district judge, nor a single party or amicus on appeal, nor the original panel opinion had ever cited a single New York case. When the final opinion came out, probably two-thirds of the resulting “headnotes” crafted by West Publishing’s staff lawyers for their “keynote” digesting system were cataloged as points of New York law.

    In a just and righteous world, Justice Kennedy would read the State of Louisiana’s motion for rehearing (and the DoJ’s supporting motion) and say to himself: “Gadzooks! I’ve ignored the will of the people, as evidenced through their duly elected Congress and President, in my calculation of the evolving national standards of decency! Alas and alack, I might have erred based on that misstep!”

    But it’s not going to happen. Not only Justice Kennedy, but the four consistently liberal Justices who joined his original opinion, will all say none of that matters.

    Those other four, of course, have a consistent pattern of supporting the interests of criminal defendants and even proven criminals over the interests of society or the criminals’ victims. Justice Kennedy, however, is more inconsistent in doing that.

    Why, then, does Patterico label him “the Court’s worst justice,” instead of “the Court’s most often misled justice”? I can’t speak for our host, but my guess is that he thinks Mr. Justice Kennedy ought to know better, and actually does know better, whereas the other four only ought to know better (but don’t).

    Beldar (0bd1bc)

  25. I can’t speak for Patterico, but I label him the Court’s most incoherent justice because – regardless of whether or not I agree with the outcome – Kennedy writes really lousy incoherent opinions.

    SPQR (26be8b)

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