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Wednesday, July 02, 2008

Courts - Linda Greenhouse points to blog that identified an error in a major SCOTUS opinion

In Kennedy v. Louisiana, issued last week, the Court prohibited states from imposing the death penalty for child rape. Linda Greenhouse writes today in the NY Times:

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.

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 revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.

Anyone in the federal government — or anywhere else, for that matter — who knew about these developments did not tell the court. Not one of the 10 briefs filed in the case, Kennedy v. Louisiana, mentioned it. The Office of the Solicitor General, which represents the federal government in the Supreme Court, did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana’s death penalty for child rape was constitutional.

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.” [emphasis added]

Here is the entry in Colonel Sullivan's blog. It is titled "The Supremes Dis the Military Justice System." The entry concludes:
Many years ago, Professor Schlueter gave a Hodson lecture he called, "Military Justice for the 1990's -- A Legal System Looking for Respect." See 133 Mil. L. Rev. 1 (1991). If the Kennedy Court's apparent unawareness of the military justice system is any guide, 17 years after Professor Schlueter's lecture, military justice remains the Rodney Dangerfield of legal systems.

Posted by Marcia Oddi on July 2, 2008 02:47 PM
Posted to Courts in general