July 06, 2008

A Supreme Do-Over on Kennedy v. Louisiana?
— Gabriel Malor

Yesterday, the Washington Post called for the Supreme Court to reexamine its ban on the death penalty for child rape. This is badly needed and extremely unlikely.

But what if the Supreme Court not only blows a key fact but also bases its ruling, in part, on that error? There was quite a goof in the court's 5 to 4 decision on June 25 banning the death penalty for those who rape children. The majority determined that capital punishment for child rape was unconstitutional, in part because a national consensus had formed against it. As evidence, the court noted that "37 jurisdictions -- 36 States plus the Federal Government -- have the death penalty. [But] only six of those jurisdictions authorize the death penalty for rape of a child." Actually, only two years ago, Congress enacted a death penalty for soldiers who commit child rape, as part of an update to the Uniform Code of Military Justice (UCMJ). Irony of ironies: The court has cast doubt on the constitutionality of an act of Congress based on the erroneous claim that the statute did not exist.

The Kennedy case is embarrassing not only for factual errors, but for revealing just how unimpressive the justices get when they decide to apply constitutional criteria so meaningless as "evolving standards of decency" and "the Court's own judgment." These criteria could be used to either justify or ban almost any law based on nothing more than the whim of a majority of justices. As I wrote the day the decision was handed down, "The whole point of having a Constitution and precedential judgments is so that individuals and legislatures can predict with some success whether their actions will run afoul of the laws or Constitution. But when it comes to the Court's holdings on the Eighth Amendment, that goes right out the window." Even if I agreed that "evolving standards of decency" inform whether a punishment is cruel and unusual, "the Court's own judgment" is bound to change as often as its members.

Given such freedom within which to work, one would have expected the justices in the majority to at least pull together something believable to justify their conclusion. It is not too much to ask that they actually apply the loose standards which they adopted. Unfortunately, Justice Kennedy's opinion is simply a mess. As I wrote the day of the opinion, he latches onto any recent laws which limit the death penalty (as in the case of the mentally disabled) and uses it to claim a "national consensus" against the death penalty in general, despite the trend toward executing child rapists. So Justice Kennedy fudged the first criterion.

Last week it turned out that the parties, the justices, and the DoJ overlooked a recent federal law providing for the death penalty for soldiers who rape children. Kennedy's discussion of "evolving standards of decency," already weak given the trend and national feelings about capital punishment was substantially undermined. Now, everyone is talking about it. The D.C. gun ban case may have been the most anticipated decision of the term, but Kennedy has taken over the center ring.

That attention may accomplish more than the usual complaining after a contentious case. Typically, the justices can close the term, even if there is bad press and hard feelings, and pat themselves on the back for at least doing the best that they could. Nobody can say that when it comes to this case. Kennedy's name is on the opinion, which would now be a national joke if it wasn't so important. And the credibility of the Court itself is in question.

So what can they do? If Louisiana chooses, it can petition the Court to rehear the case. It would be, essentially, a do-over. Even if the justices were to come to the same conclusion (as I would expect, given "the Court's own judgment" criterion), they could write new opinions. Unfortunately, it takes five votes to rehear a case. Assuming the dissenting justices would want to, they would still need to convince at least one of the majority to join them in granting the petition. Justice Kennedy is the most obvious vote because his name is on the embarrassing opinion. But isn't it more likely that he will choose to let this slide, believing that the clamor will fade eventually?

Posted by: Gabriel Malor at 09:50 AM | Comments (21)
Post contains 737 words, total size 5 kb.

1 That's interesting but irrelevant. That whole evolving standards thing is simply a fancy way to say, "that's just the fucking way it is because I am the only important one up on that bench".

There will be no rehearing. Ruthie gave me a cake for my decision and I already ate it. I can't change my mind now.

Posted by: Anthony "I am the law" Kennedy at July 06, 2008 10:05 AM (hlYel)

2 Shut up.

Posted by: Judge Anthony Kennedy, Your Overlord at July 06, 2008 02:09 PM (64mPa)



The outcome was predetermined. It doesn't really matter what the facts are, so having a rehearing would be an exercise in stupidity.

These cases are decided by opinion, not facts. Mr. Kennedy is of the opinion that that death penalty for raping children is cruel (his child, of course, having never been raped).

Since the case result merely turns on opinion, it's a lot like the Times' own editorials - which start from a preconceived notion and then seek out facts to support that notion, ignoring and mimizing those which don't.

Methinks they are projecting.


Posted by: kennedywatcher at July 06, 2008 02:16 PM (Ncq2X)


They're in a pickle, no matter what.

Either they have a rehearing and come to the same conclusion, because the facts don't matter.


They don't have a rehearing, because the facts don't matter.

Posted by: FUBAR at July 06, 2008 02:22 PM (HrVHr)

5 I think we're better off if there is no rehearing. If they do go back to this, the chances are that the opinion won't be such utter hash. That would be hard to get a future court to overturn. I can just hear the cries of "Precedent! Two time loser! and Stare Decisis! If this crap ruling stands, a future court might be able to overturn it.

Posted by: XBradHusseinTC at July 06, 2008 02:26 PM (pSXbN)

6 I still say Jindal tells the Supremes to go play "hide and go fuck yourself" and off the guy anyway. Which one of you jokers coined that lovely phrase?

Posted by: SGT Dan at July 06, 2008 03:21 PM (YzCiM)

7 Better to wait until there is another conservative on the court before revisiting the issue. 

Posted by: GRC at July 06, 2008 03:54 PM (CrTXe)

8 I'm inclined that there may indeed be a rehearing (I'd say more likely than not), and that's there even some chance of the Court reversing itself (slim, but not impossible).  The reason why is precisely because the Solicitor General  never had an opportunity to address the case as amicus, even though it's now obvious to all that the federal government DID have an interest in this case.  The SG is colloquially known as the "Tenth Justice" and is given a great deal of weight by the Court, and since we can assume the SG's office will file an amcus brief in support of Louisiana's petition for rehearing, the justices will want to hear what the SG can add to this.

Posted by: Dave J at July 06, 2008 03:59 PM (glamO)

9 Wait . . .    what?

Posted by: American Yum Yum Clown Monkey at July 06, 2008 04:33 PM (w0yN2)

10 Sunset Judicial Activism

Congress and the President could easily solve the problem of judicial activism by passing a law that any rule of law decided upon by the Supreme Court sunsets in 5 years times the number of justices in the majority and 5 years for any lower court as a maximum. One might also consider a retroactive provision where previous judicial decisions would sunset in a similarly organized fashion related to # of judges in majority and age of ruling. 

After a ruling sunsets, the Legislative branch could take up these issues legislatively, or it could be reviewed again by the Courts. 

Eventually, the piles of steaming judicial compose that have warped the nature of our Constitution would be replaced by properly executed legislative process. Jefferson talked about each generation have the right to revolution. This would provide each generation a tool to reconsider important and unsettled issues in an organized predictable fashion.

The Judicial Branch could complain all it wants, but there isn't any clearly defined right in the Constitution for them to have the right to declare laws for all time that they have declared for themselves.  With two branches of government passing a law to Sunset Judicial Activism, it seems one has two branches defining law within the reasonable exercise of the powers clearly delineated in the Constitution. 

Personally, passing something along the same lines for sunsetting all laws Congress passes by the size of the majority the law was passed might be worth considering to keep Congressional Compost from getting too deep.  However, such a law may need to be a Constitutional Amendment since messing with the rules for passing laws is clearly defined in the Constitution.  However, the fine print here would be Congress would probably rely upon 'bureaucratic regulations' to be the new source of compost to cover the Constitution and people's right for each generation to define the important issues in their own perspectives.   Minimlly, it's all something that may be worth occasional comtemplation. 

Posted by: Dr Fred at July 06, 2008 04:48 PM (JbxXM)


At first I thought that you'd typed the 'Post' in error when you meant to type the 'Times'.

Surprisingly, un-Post like of them.

Posted by: jmflynny at July 06, 2008 05:12 PM (j2mLD)

12 Posted by: XBradHusseinTC at July 06, 2008 02:26 PM (pSXbN)

Damn fine point there.

Listen.  I abhor the death penalty for about 95 reasons which reach from good ol' Christian forgiveness to the fact that it's a waste of my fucking money.  Reasonable people can disagree, even amongst morons.

But the consensus about decency was by the people of Louisiana as expressed by their elected representatives.   "We think its decent to kill  these fuckers."  Good enough for me.

Posted by: Herr Morgenholz at July 06, 2008 07:31 PM (/v7QL)

13 Stupid.  If this gets a do-over, all we'll hear from the media and the libs is "We want a do over on that gun thing now, too..."

Posted by: M. Murcek at July 06, 2008 07:54 PM (XHrp7)

14 Sorry Dr Fred, a law limiting the SCOTUS would only matter if they paid attention to laws limiting them. As Boumediene shopwed, even if a matter is constitutionally taken out of their purview, they'll still go ahead and rule on it.

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