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July 3, 2008

Could all the mistakes in Kennedy be corrected?

Linda Greenhouse spotlights in this new article that a key legal mistake in the Kennedy child rape ruling is drawing attention and a notable admission of error:

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.”...  The solicitor general’s office, which represents the federal government before the Supreme Court, did not file a brief in the case, and none of the 10 briefs that were filed informed the justices of the new federal law....

Speaking to reporters on Wednesday morning, the White House press secretary, Dana Perino, said the administration “was disturbed by the New York Times report that the court’s decision might be based on a mistake.”  The Justice Department is looking into what happened and what steps may now be taken, Ms. Perino said.

The Justice Department elaborated in its statement, which it issued in late afternoon. The department informed the court of the omission “shortly after learning of the law” on Tuesday, the statement said. As the department’s statement noted, only parties to a case can ask the justices to reconsider their decision.  The department might ask the court for permission to provide its views if Louisiana files a rehearing petition, the statement added.

Steve Wimberly, the first assistant in the Jefferson Parish, La., district attorney’s office, which handled the case for the state before the Supreme Court, said in an interview Wednesday that while no decision had yet been made, “we are strongly considering the option of asking the justices to reconsider the case.”  Mr. Wimberly added that Gov. Bobby Jindal, who denounced the court’s ruling, was involved in deciding how to proceed.

Though the mistake about military capital punishment law makes for a fascinating story, I do not think this legal particular itself would prompt the Supreme Court to reconsider its ruling.  (I see that Orin Kerr writing here at Volokh largely agrees in this assessment.)  However, combined with the (legally significant) negative reaction to the Kennedy decision, I cannot help but wonder if this story has some real legs.

Recall that a key linchpin of the Kennedy ruling is the majority's conclusion that there is a "national consensus" against child rape as a capital offense.  But, as this NRO commentary rights highlights, the "furious public outcry after the ruling was a pretty good sign that something was amiss in the majority’s survey."  indeed, this separate NRO piece makes an even more astute observation about evidence that there is not a consensus against making child rape a capital offense:

The leaders of both major parties were quick to oppose Kennedy — presumably not out of a desire to contravene society’s “standards of decency” in the middle of a presidential race.  At a press conference in the wake of the holding, Barack Obama commented: “I think that the rape of a small child, six or eight years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that does not violate our Constitution.”  So even the most liberal member of the Senate does not have a sense of decency as highly evolved as the Court’s.

I know very little about the legal and practical dynamics that surround rehearing petitions in the US Supreme Court (and I am hoping the folks at SCOTUSblog get on this issue ASAP).  Apparently the SG's office is prepared to file an amicus brief in (support of?) any rehearing petitioning.  Similarly, I think a number of amici who supported Louisiana originally might also support its rehearing efforts.

Of course, the big question is how many Justices need to vote for rehearing and whether any of the Supremes have a serious interesting in continuing this debate.  I have a nagging feeling that the four dissenting Justices in Kennedy have little interest in rehashing all these issues, and they may know that there is little chance that any members of the majority with change course.  But, if the Justices are truly open-minded on these issues (which they should be, but likely aren't), I hope they will recognize that the new relevant post-decision developments may demand humble reconsideration of a decision that many justifiably now view as especially suspect.

July 3, 2008 at 08:28 AM | Permalink


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if the Justices are truly open-minded on these issues

That is a massive "if." The Justices are probably truly open-minded about a lot of things, but I highly doubt that there was much going on in this case beyond Justice Kennedy's personal sensibilities.

Posted by: 3d yr associate | Jul 3, 2008 10:20:42 AM

I still don't understand why Congress' decision to allow the death penalty for rape of a child is not that significant. The question of whether the death penalty in cases such as these is a moral question, and the moral issues involved do not turn, at all, on whether the miscreant is a member of the armed forces or not. Consequently, one cannot escape the conclusion that the legislature that represents the nation as a whole has concluded that the execution of child rapists is not indecent. Given that society's views are interpreted through the enactments of legislatures, and this is the legislature that represents society as a whole, how is it possible to state that society has achieved the consensus on this moral question set forth in the Court's opinion?

Posted by: federalist | Jul 3, 2008 10:21:13 AM


"[I]f the Justices are truly open-minded on these issues (which they should be, but likely aren't), I hope they will recognize that the new relevant post-decision developments may demand humble reconsideration of a decision that many justifiably now view as especially suspect."

You're right, they aren't open minded. When Kennedy gets on his high horse, as he was in this opinion, there's nothing to be done.

The evidence of a national consensus against the death penalty for child rape was weak to begin with. Indeed it was mostly concocted. So one more item impeaching it won't matter.

The real key to the decision was the majority's all too truthful assertion that it was applying its own assessment. This is poorly disguised code for, "We're striking it down because we don't like it."

That's what happened, and that's why it won't make any difference if someone were to discover that 30 states have capital punishment for child rape.

It's not about analysis. It's about will. And it's a lesson about why the courts need to be more modest in striking down state statutes.

Posted by: Bill Otis | Jul 3, 2008 10:26:47 AM

"It's not about analysis. It's about will. And it's a lesson about why the courts need to be more modest in striking down state statutes."

Like the National Legislature's decision to approve the prohibiton of handgun ownership in our nation's capital? Didn't see a lot of handwringing over the court's decision to strike down that democratic (note lower-case "d") decision.

Posted by: Anon | Jul 3, 2008 10:55:45 AM


I said the Court should be more modest in doing it. I didn't say it should NEVER do it.

Posted by: Bill Otis | Jul 3, 2008 11:15:48 AM

Could all the mistakes in Kennedy be corrected?

All the mistakes in Kennedy--too many to count. All the mistakes in Kennedy--probably correctable.

Posted by: 3d yr associate | Jul 3, 2008 11:19:47 AM

3d yr associate:


Posted by: Bill Otis | Jul 3, 2008 11:23:22 AM

The statute does not undermine the Court's conclusion that a national consensus against imposing the death penalty for non-homicide offenses exists. Nor do the presidential candidates' views. The Court has long looked for evidence of national consensus in the expressions of legislatures (not in the expressions of political candidates running for government offices). The federal law is a limited one applicable only to the military, i.e., it is not a law of general applicability. It should have been considered, to be sure, but if you read Kennedy, it wouldn't matter in the slightest, nor should it.

Posted by: DK | Jul 3, 2008 11:37:34 AM

"how many Justices need to vote for rehearing?"

According to SCOTUSBlog: "To grant such a rehearing, one of the Justices in the majority must switch sides and there must then be a majority to reexamine the ruling."

Posted by: DEJ | Jul 3, 2008 11:44:17 AM

Sorry, but any "furious public outcry after the ruling" must be taken with a grain of printer's ink--same grain that may have inspired Congress to act on the 2006 military law. First, state laws disallowing the DP for child rape should be a more accurate view of public sentiment than a congressional act. But second and to me more importantly, which is, in spite of "cruel and unusual" implying a need to look at public sentiment, at some point you hit a non-subjective brick wall on this (let's look at sharia law, as an exercise--a hand for a theft, a stoning for a sexual dalliance--that meets with public approval). My notion of the constitution is that ultimately it forms a bulwark against mob rule, and when does "furious public outcry" (assuming it indeeds represents the majority outlook), become no different from mob rule?

Posted by: ts | Jul 3, 2008 12:15:58 PM

To piggyback DEJ's comment. Supreme Court Rule 44(1) says: "A petition for rehearing is not subject to oral argument and will not be granted except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision." Also noteworthy is the Rule that response briefs are not allowed except by invitation of the court (but are required before granting the motion) and amicus briefs in support or opposition are not allowed. Sp. Ct. R. 44(3) & (5).

Should a petition for rehearing be filed, I'd expect to see a ground swell from the various state governments and Congress supporting the grant of the petition. That and to attempt to show a "national concensus" supporting the death penalty in this instance. A test of whether the Court is affected by political pressure and whether Kennedy can swing with the heartbeat of the country as O'Connor did.

Posted by: MM | Jul 3, 2008 12:27:04 PM

MM, does that mean a survey of the states' own rulings on cruel and unusual punishment could be briefed? And if so, what if the majority or most states have their own state supreme court findings that cruel and unusual punishment is unconstitutional? There goes the federalism argument.

Bottom line, what if it is reviewed and the Court finds an even broader basis for finding cruel and unusual punishment unconstitutional (perhaps broad enough eventually apply to non-death cases)?

Does anyone know how many states supreme courts have ruled on the issue and found cruel and unusual punishment CAN be unconstitional?

Posted by: George | Jul 3, 2008 12:47:04 PM

George, a survey of the state's rulings could be briefed by the petitioner, but it would have to be succinct. This type of petition looks for a very narrow and very compelling reason for rehearing--something rarely found at any level--and is generally very short in form.

As far as what the substantive state court rulings are, I couldn't even hazard a guess. I personally doubt that a rehearing would result in a broader ruling. Case law may provide for a slippery slope over time, and the resurection of the evolving morals doctrine leans that way. But any Court ruling can be changed through an Amendment.

For now, this case will remain narrow because its subject was narrow. My point went more to the possibility of state legislatures/governors and Congress putting political pressure on the Court to rethink the conclusion that there is a national consensus opposing the DP for anything other than another's death. I'd look for something akin to a toothless "Sense of Congress" bill (H. Con. Res. or S. Con. Res.). At this point, I can't see the Court granting a petition for rehearing though.

Posted by: MM | Jul 3, 2008 1:18:34 PM

Thanks for the clarification. I'm off to find a bean count of state court rulings. So far, no luck. So far, not even a count of how many states have a cruel and unusual clause in their constitutions.

Posted by: George | Jul 3, 2008 1:41:07 PM

I wonder if the military law was passed individually or passed as part of a bill with several other items? It obviously didn't raise a lot of debate since no one heard of it. Of course, if the bill providing for it was passed as part of a general bill with several items or passed as a rider chances are very few Congressmen even read it or knew about it. So the fact that Congress passed something (especially something so obscure that apparently no one bothered to notice it)

Also one can reasonably ask whether the military law is even covered by the Kennedy ruling - the opinion specifically was limited only to general laws which would seem to leave the question on whether military law (which after all, at one time, at least, provided for the death penalty for desertion) is covered under any law. Perhaps no one bothered with the military law because it simply was not relevant as military law to a civilian law determination. It seems from the evidence it is more likely that Congress may not have even known what they were passing.

The "outrage" seems limited to a few commentators online and pandering politicians. Absolutely nobody in the real world really seems to actually care about this decision!

Posted by: Zack | Jul 3, 2008 2:23:28 PM

Well, a lot more people seem to care about this "mistake" (tho someone on my blog noted that the military blogger was the one who was incorrect) than they do about Blakely (O'Connor's list of affected states turned out to be partly wrong), Exxon (totally misread the NCSC data), and other opinions. Those other cases never even got *any* press.

Posted by: Anne | Jul 3, 2008 4:01:53 PM

Press coverage does not equal public interest. The fact that attorneys, law students, and other people interested in law enough to read legal news sites care about something doesn't mean that it is on the public interest. Until the story of this mistake appeared, no one at all other than a few criminal law attorneys trying to decipher the latest code about the 8th Amendment cared all that much. In fact, honestly, other than the entertainment value, I find very little reason to care about this and I'm an attorney. And sorry, but the actual opinion itself generated very little public interest that I was able to observe (and it was out of the news by then).

As attorneys we often ignore how little the general public actually cares about the Supreme Court.

Posted by: Zack | Jul 3, 2008 5:02:24 PM


How would you differentiate between "mob rule" and "majority rule"? Presumably you would favor the latter, since the principal purpose of the Revolutionary War was to replace rule by the Crown with majority rule.

Would it be your view, for example, that when a legislature votes for increased social spending, that is an example of majority rule (and thus good), but when it votes for mandatory minimum sentences, that is an example of mob rule (and thus bad)? But other than your feeling about the result, what's the difference, in terms of operational democracy, between the two votes?

Posted by: Bill Otis | Jul 3, 2008 10:23:03 PM

Perhaps "mob" is a less felicitous word than "majority" (though Thomas Jefferson said “A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.")My point is only that the Constitution establishes this country as a constitutionally limited republic and not a direct democracy, and the Constitution seeks to protect certain fundamental freedoms against the changing whims of popular opinion. Policy directing social spending does not come into the category of fundamental constitutional rights and freedoms--at least not directly.

Posted by: TS | Jul 5, 2008 12:53:54 PM


"[T]he Constitution seeks to protect certain fundamental freedoms against the changing whims of popular opinion. Policy directing social spending does not come into the category of fundamental constitutional rights and freedoms--at least not directly."

No argument there. The problem with Kennedy v. Louisiana and death penalty jurisprudence generally is that if DOES take account of public opinion.

As a general matter, this cannot be correct as a means of Constitutional adjudication. The meaning of the words in the Constitution doesn't change with public opinion.

If the death penalty for child rape IS constitutional, it's not because a majority wants it. Likewise, if the death penalty for child rape IS NOT constitutional, it's not because a majority doesn't want it.

Giving effect to the public will is a job for the elected brancehes. Deciding what the Constitution means could not possibly depend on a show of hands.

Posted by: Bill Otis | Jul 5, 2008 1:11:28 PM

Election-year political posturing is legally relevant to the interpretation of the Constitution? That is a stretch, Doug. I seriously doubt there has ever been an Eighth Amendment case in which a politician's personal pronouncements have been deemed sufficiently reliable evidence to bear upon the evolving standards of decency of society as a whole.

Posted by: Anonymouse | Jul 7, 2008 12:24:48 AM

I am a criminal defense lawyer.

I have heard that the amendment to the code of military justice was not debated in Congress, but was inserted stealthily into an unrelated bill and escaped notice by members so that there was no discussion. If this is true, would not the significance of the military rule be substantially less for assessing evolving standards?

Posted by: John Minock | Jul 10, 2008 4:22:57 AM

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