Bench Memos

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Re: Short a Fact or Two


Catching up from my time away (before I head out again), I’d like to follow up on Matt’s posts (here and here) last week about the Supreme Court’s and the parties’ failure in Kennedy v. Louisiana to take note of a 2006 law authorizing the imposition of the death penalty in military prosecutions for the crime of raping a child.  My prediction:  Justice Kennedy will tweak his majority opinion to note the law and to dismiss its significance, perhaps in a way that obscures from future readers the fact that any change was ever made.  Never mind that the enactment of the law undercuts his analysis.


I base this prediction on my perception that Kennedy would not tolerate retaining a demonstrable factual error in his opinion, especially not one noted in the New York Times.  Massive jurisprudential errors, gross misreadings of the Constitution, mischaracterizations of precedent, and illogical reasoning—those are okay with Kennedy because he can always find cover (and they’re necessary if Kennedy is going to be Kennedy).  But a publicly known factual error?  Why, that might undermine what Kennedy imagines to be (as he and his co-authors inanely proclaimed in Planned Parenthood v. Casey—see This Week for June 29, 1992) the American people’s faith in the Court’s “authority to decide their constitutional cases and speak before all others for their constitutional ideals.”

Tags: Whelan


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