Bench Memos

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Wiping Off the Egg


In a follow-up to her front-pager yesterday, Linda Greenhouse reports in the New York Times today that the Justice Department is more than a bit chagrined that it did not draw the attention of the Supreme Court to an act of Congress only two years ago providing the death penalty for child rape in military cases.  (See my post on this and Andy McCarthy’s article yesterday.)

Greenhouse notes the following about the DOJ mea culpa: “The Justice Department statement was carefully worded to avoid conceding that under the reasoning of the Supreme Court decision, the military death penalty provision for child rape is now unconstitutional.”  This is understandable, almost instinctively lawyerly caution.  But of course the provision “is now unconstitutional,” if the question is whether it is possible to execute a court-martialed child rapist while last week’s ruling remains in force.  It is not, and DOJ’s care in not “conceding” so is quite pointless.

Yet another angle to be seen here is the casual use by Linda Greenhouse (and she is not alone in this) of the turn of phrase “is now unconstitutional.”  This blithely assumes that something perfectly constitutional on Tuesday becomes unconstitutional Wednesday, for no other reason than that five justices of the Supreme Court say so.

How low we have fallen.

UPDATE: Andy McCarthy has weighed in again on this little fiasco (and hey, thanks for the kudos, Andy!).  In answer to his question about motions for rehearing, I am certain that will take five votes, not merely the four required for granting certiorari.  The default position for Supreme Court decision-making is a simple majority, so the fact that Rule 44 does not specify a decision rule means it will take five votes.  So who among the five justices in the majority of Kennedy v. Louisiana will think it is worth rehearing the case?  I’m betting the answer is no one.

UPDATE to the UPDATE: On a second look, it doesn’t seem that the published rules of the Court ever mention the “Rule of Four” for certiorari.  So the silence on the margin for rehearing is not enough to be sure it will take five.  I’m still certain it will, though, because certiorari is well-known as the only decision the Court ever makes by a margin less than a majority.  It would be odd indeed if rehearing could be granted by the vote of the four losers in a 5-4 case!


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