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July 5, 2008

Washington Post editorial supports rehearing in Kennedy child rape case

I am very pleased to see that the Washington Post, in this new editorial, is encouraging the Supreme Court to rehear the Kennedy child rape case in the wake of the discovery that the Justices got a key fact about federal law wrong.  Here is how the effective editorial ends:

The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That's why we think the court needs to reopen this case -- even though we supported its decision.  The losing party, Louisiana, still has time to seek a rehearing, which the court could grant with the approval of five justices, including at least one from the majority.  The court could limit reargument to briefs on the significance of the UCMJ provision. We doubt the case will come out much differently; we certainly hope not. But this is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.

As explained in this recent post, I also believe the Court should rehear Kennedy, though I am not optimistic that the Justices will take the case up again.  That said, I think this WaPo editorial can and should provide some important momentum to the Kennedy rehearing buzz.

While we are inside the Beltway, it is interesting to speculate whether any other prominent voices might actively urge a SCOTUS rehearing.  Specifically, what about Senator John McCain, who bashed the Kennedy ruling in a recent speech to law enforcement (noted here and here)?  Perhaps Senator McCain can introduce in the Senate a resolution urging the Justices to rehear Kennedy.  Perhaps Senator Obama will show his true commitment to a new politics by co-sponsoring such a resolution.  (Regular readers may recall that the Senate in summer 2004 passed a resolution encouraging the Justices in the wake of the Blakely decision to consider Blakely's impact on the federal sentencing system.)

As the Washington Post editorial effectively highlights, the fact that the Kennedy case deals with a high-profile and controversial issue may make it even more important and valuable for the the Justices to grant a rehearing.  After its rulings in Kennedy and Heller, many observers (justifiably?) see the Court acting like a super-legislature.  Just a decision to grant rehearing in Kennedy may go a long way toward showing that the Justices are at least trying to do more than just make partisan policy calls.

Some related recent posts:

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Comments

Oh, this is silly. There are lots of tiny mistakes in SCOTUS decisions. Do they matter? No.

Scalia’s dissent in Boumediene v. Bush contained a lot of factual errors (which were the result of looking outside the record, and relying on quotes in the Washington Post that were inaccurate that he reported as being “true.”) But he wouldn’t change his vote. Nor will anyone in this case.

The parties just have to understand that because of poor lawyering the streets will not run with as much blood as desired. Next time a state wants to kill someone, states should make sure and do a better job at bluebooking, and argument, because proper bluebooking is what will allow the state to kill as many people as possible. Think of it this way. Every improperly italicized period means ten less state-sponsored killings.

Hopefully someone will come forward and take responsibility for that error. Because of his incompetence the State of Louisiana will be unable to kill some people in an elaborate pageant that the state of Louisiana takes great pride in (yet refuses to let schoolchildren watch because of the nudity). Should he be disbarred? No client should have to deal with that low level of practice.

Posted by: S.cotus | Jul 5, 2008 10:06:01 AM

Germane to this debate about a rehearing is this quote from Scalia in Dickerson:

In imposing its Court-made code upon the States, the original opinion at least asserted that it was demanded by the Constitution. Today’s decision does not pretend that it is–and yet still asserts the right to impose it against the will of the people’s representatives in Congress. Far from believing that stare decisis compels this result, I believe we cannot allow to remain on the books even a celebrated decision–especially a celebrated decision–that has come to stand for the proposition that the Supreme Court has power to impose extraconstitutional constraints upon Congress and the States. This is not the system that was established by the Framers, or that would be established by any sane supporter of government by the people."

The "especially a celebrated decision" is the important part.

Posted by: federalist | Jul 5, 2008 10:08:29 AM

If “the will of the people” was really as you said it was, the people would have amended the constitution. In fact, I could envision an amendment that reads “The Eighth Amendment of the Constitution shall not be construed to limit the inherent right of a state to kill, wound, or rape.”

However, there was little interest in this. The gay marriage thing and flag-burning thing went much further. The people spoke. It is too bad that you were unable to convince the court of your point of view, but on the other hand, some lawyers are better than others, and you just didn't have the better lawyers. Better luck next time.

Posted by: Scotus | Jul 5, 2008 11:48:05 AM

S.cotus:

How odd that in in discussion about a case concerning child rape you never mention child rape.

I know the subject is unpleasant. But not nearly as unpleasant as the crime. The victim suffers terribly is something like that. The account of the facts in the Court's opinion is both awful and heart rending.

Do you care?

Posted by: Bill Otis | Jul 5, 2008 12:34:08 PM

S.cotus,

Talk about sophistry. Back during the time of the Framers, felons were routinely executed for lesser offenses such as arson and burglary. But now I'm supposed to believe the 8th Amendment contains a bar against executing child rapists?

Posted by: realist | Jul 5, 2008 12:42:40 PM

Rehearing? I love it. Let's have them when defense attorneys through their negligence make the tiniest of errors as well!

Posted by: dm | Jul 5, 2008 12:55:33 PM

DM, I agree. In fact, I think all convicted people should be entitled to a new trial if it turns out that their lawyer made any mistake at all. If you disagree with me, then you disagree with the state of Louisiana in its efforts to stop child rape, and therefore you are in favor of it. Therefore, the only way to stop child rape is to allow unlimited do-overs if there is a mistake made by counsel.

Mr. Otis, Not really. Since I think that the 8th amendment limits the application of the death penalty to actual murderers (and we can quibble as to whether that is so or not) it doesn’t matter at all to me what anyone else might have done.

Realist, You can believe what you want. My view of the 8th amendment was better articulated than your view, and that is why my view won at the Supreme Court. This isn’t a matter of sophistry, but rather of constitutional interpretation.

Posted by: S.cotus | Jul 5, 2008 1:18:55 PM

"My view of the 8th amendment was better articulated than your view, and that is why my view won at the Supreme Court. This isn’t a matter of sophistry, but rather of constitutional interpretation."

Isn't "winning" due to skill in argument the whole idea behind sophistry?

Posted by: federalist | Jul 5, 2008 1:27:54 PM

dm:

"Rehearing? I love it. Let's have them when defense attorneys through their negligence make the tiniest of errors as well!"

Your wish may be about to be granted.

In this case, the defense attorneys DID make a mistake. The canons of ethics require counsel to bring to the Court's attention relevant authority, whether it supports their position or not.

By not citing the revision to the UCMJ providing for the death penalty for child rape, defense counsel failed to meet this requirement, and thus erred.

Was it the defense lawyer primarily who was to blame? Nope. Was it Louisiana? Nope, although the state had a greater obligation, since the non-cited authority was favorable to it.

The principal finger of blame gets pointed at Anthony M. Kennedy. He was the author. Getting it right was primarily up to him.

Posted by: Bill Otis | Jul 5, 2008 2:22:20 PM

Judges are under no ethical duty to do such research. While it is often considered "cool" to accuse everyone of ethical breaches, since this isn't binding authority (and, in fact, it isn't "authority" but rather, at best, some evidence of social norms), there are no ethical breaches. (If you want to really be a pip, accuse EVERYONE of an ethical breach for anything they do that annoys you. For example, I recently accused opposing counsel of being unethical for showing up late even though I knew that there was a traffic jam.)

Whatever the case, we need to find a lawyer for one side or other to blame for substandard advocacy. Because he probably went to a low-ranked law school, the citizens of Louisiana will be able to kill fewer people than they want.

Posted by: S.cotus | Jul 5, 2008 2:51:29 PM

I'm starting to think the comments on this blog are some sort of performance art project. Certainly, they don't consist of much meaningful or good-faith discussion of the topic at hand.

Posted by: Jay | Jul 5, 2008 7:03:27 PM

The Kennedy ruling makes the military capital punishment law unconstitutional.

Jeez, what's the problem? They are the Supreme Court. The Ultimate Court of Appeal and Decision.

(If USA politicians are against the Kennedy decision, you can be certain it is constitutional).

Nigel.

Posted by: Dr Nigel Leigh Oldfield | Jul 5, 2008 8:09:37 PM

For the record, this should not be challenged for this issue, if it should be challenged, it is, because I believe, that:

"The majority determined that capital punishment for child rape was unconstitutional, in part because a national consensus had formed against it"

... is incorrect. I have read the evidence for this and that is not a measure of the national consensus, it is a measure of State judicial decisions.

Such is one difference between law and truth.

Nigel.

Posted by: Dr Nigel Leigh Oldfield | Jul 5, 2008 8:19:02 PM

Getting back to the original point of the post, S.Cotus's first comment is absolutely correct that a rehearing would be a waste of everyone's time. Not one Justice is remotely likely to change his or her vote on the basis of the UCMJ provision; indeed, I think it's pretty broadly accepted that the military has greater latitude to impose the death penalty than does the civilian government, so the UCMJ is more or less irrelevant to the question before the court. Moreover, as S.Cotus also pointed out, attorneys make far more substantial errors than this, usually to the detriment of criminal defendants, on a daily basis. This error wouldn't even satisfy the "falling below an objective standard of reasonableness" prong of the Strickland v. Washington ineffective assistance test, much less the prejudice prong. Unless you're arguing that the government should get a do-over on the basis of minor errors that wouldn't so much as raise a judicial eyebrow if committed by a criminal defense attorney, there's just no basis whatsoever for calling for a rehearing in Kennedy.

Posted by: Anon | Jul 5, 2008 9:07:02 PM

Bill, I notice your list of blameworthy entities omits your former employer, which is the only such entity to accept blame so far.

How do I know this is DOJ's fault? DOJ told me so.

Posted by: Anon | Jul 5, 2008 11:30:11 PM

John:

"Bill, I notice your list of blameworthy entities omits your former employer, which is the only such entity to accept blame so far."

You "notice" it because, like Anthony M. Kennedy, you're too blase' and sure of yourself to look as far as you need to.

Three days ago almost to this hour, I wrote this to someone who wanted to blame ONLY my former employer:

"If a point be made of it, DOJ was NOT A PARTY TO THE CASE. It therefore had no obligation to say anything. This is by no means to excuse its blunder; once it chose to come in as an amicus, it should jolly well have done its homework. My point is simply that there were other and more directly involved people who also didn't do their homework, but you haven't a word of criticism for them."

I then followed up with this a few minutes later:

"My post above contains an error. It is true that the United States was not a party, but, contrary to what I said, it did not file an amicus brief either. This does not mean it didn't make a mistake. The SG is supposed to defend the federal government's interests in Supreme Court litigation, and it failed to do so here." ###

But, John, since you've brought up the subject of omissions, or supposed omissions: I notice that, while you had the time to put up your post here erroneously accusing me of having let DOJ off the hook, you seem NOT to have had the time to respond to what I said to you about the Wilbert Lawerence case. Is that because, having seen a few more facts, you now agree with me?

Posted by: Bill Otis | Jul 6, 2008 8:24:04 AM

Correction: My last post should have been addressed to Anon, not to John. I apologize for the error.

Posted by: Bill Otis | Jul 6, 2008 8:29:07 AM

If people were not whining about how the supreme court has sided with child rapists, nobody would even be considering rehearing. The whole purpose of Article III protection is so the judges can rule in such a way that helps a murderer, terrorist, or child rapist, and not have to think twice about idiots who yap and bark and throw feces at them about "siding with the [criminal]."

If we're going to have rehearing on this matter because people are upset (mistakes like this happen frequently and it has no bearing on the case) we may as well just fuck Article III and elect our SCOTUS judges so each year we can elect the idiot who screams loudest about being "tougher on crime" than both the incumbent and his opponent. Then we'll never rule in favor of the 4th, 5th, 6, or 8th Amendments (aka "siding with the criminal") again.

Posted by: bruce | Jul 6, 2008 2:41:37 PM

Bill doesn't want to blame DOJ for not pointing out that the military supposedly allows death for this crime. Bill thinks it's not DOJ's fault that court's opinion doesn't mention this fact. Know who disagrees? DOJ.

WASHINGTON — In a highly unusual admission of error, the Justice Department acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact while the justices were considering whether death was a constitutional punishment for the crime.

“It’s true that the parties to the case missed it, but it’s our responsibility,” the department’s public affairs office said in a statement.

“We regret,” the statement said, “that the department didn’t catch the 2006 law when the case of Kennedy v. Louisiana was briefed.”

***

Two specific officials with DOJ are copied, by the court, on every brief filed in every case to be argued. For at least once in the last 7 years or so, DOJ is right about something: this is their fault.

Posted by: Anon | Jul 6, 2008 9:59:40 PM

Anon:

"Bill doesn't want to blame DOJ for not pointing out that the military supposedly allows death for this crime. Bill thinks it's not DOJ's fault that court's opinion doesn't mention this fact."

Really? Three days ago I wrote this:

"If a point be made of it, DOJ was NOT A PARTY TO THE CASE. It therefore had no obligation to say anything. This is by no means to excuse its blunder; once it chose to come in as an amicus, it should jolly well have done its homework. My point is simply that there were other and more directly involved people who also didn't do their homework, but you haven't a word of criticism for them."

I then followed up with this a few minutes after that original posting:

"My post above contains an error. It is true that the United States was not a party, but, contrary to what I said, it did not file an amicus brief either. This does not mean it didn't make a mistake. The SG is supposed to defend the federal government's interests in Supreme Court litigation, and it failed to do so here."

I repeated these two paragraphs in a post on this thread I put up at 8:24 this morning. You can find it three or four posts above this one.

Either you didn't read it and are slinging around these allegations in ignorance, or you're a liar. Please tell us which.

Posted by: Bill Otis | Jul 6, 2008 11:20:08 PM

At most, the court should amend the opinion to mention the DP provision in the military courts. As many have noted, this ommission, which is primarily the appellee's fault, is not and should not be likely to change the outcome of the opinion.

Two questions:

(1) Did the DP provision in the military court require aggravating circumstances other than the age of the child?

(2) Why did Congress approve the DP for military courts, but not for child rape convictions in civilian federal courts?

Posted by: rn | Jul 7, 2008 3:24:07 PM

Mr. Otis, You seem very willing to call people “liars.” You also seem very willing to accuse anyone that takes a position that in some vague way might benefit a criminal as supporting (or engaging in, themselves) that criminal conduct. Neither argument is very effective in convincing people to see things your way. Perhaps you would be a more effective advocate if you would strive to find common ground with people, and THEN show why your position is actually the natural extension of their beliefs. Just a tip.

Posted by: S.crotus | Jul 8, 2008 3:43:16 PM

S.cotus:

"Mr. Otis, You seem very willing to call people 'liars.'”

Actually I'm reluctant to do it, but I will if someone intentionally misstates what I have said. Anyone can make a mistake; that's not lying. If you keep doing it after having been corrected, what exactly would you call it, S.cotus?

"You also seem very willing to accuse anyone that takes a position that in some vague way might benefit a criminal as supporting (or engaging in, themselves) that criminal conduct."

Not only am I not "very willing" to do it, I haven't done it (or if you think I have, please supply the quotation). If you want to make an accusation like this, you should produce the evidence. Just a tip.

By contrast, when I have been accused of being a "murderer" because I support the death penalty as sometimes warranted and consistent with the Eighth Amendment, I don't recall your admonishing the commenter who made the "murderer" remark. Did you? Where was that? If you didn't, why not? You're not operating with a double standard, are you?

"Neither argument is very effective in convincing people to see things your way."

Since they're not "arguments," and since even if they were I haven't "made" them, this is not something that concerns me.

"Perhaps you would be a more effective advocate if you would strive to find common ground with people, and THEN show why your position is actually the natural extension of their beliefs. Just a tip."

When it counted -- which is to say in federal court rather than in cyberspace -- I seemed to do OK as an advocate. As I have in the past, I invite you to check that for yourself. But putting it entirely to one side, your view of my persuasiveness is just that: your view. Some share it; others don't.

As it happens, however, I DO make an effort to appeal to people on the basis of what I take to be widely shared beliefs. Some of these are: the punishment should fit the crime; adults of sound mind are responsible for their own behavior; criminals pose less danger to the general public when incarcerated than when on the street; and drugs like meth, heroin and cocaine and dangerous and sometimes lethal in addition to being illegal.

Do you disagree with any of that?

Posted by: Bill Otis | Jul 11, 2008 7:01:00 PM

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