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Bench Memos

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Short a Fact or Two



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A military reservist who writes a blog on military law notices a factual error in Justice Anthony Kennedy’s opinion for the Court in last week’s Kennedy v. Louisiana ruling invalidating the death penalty for child rape.  Linda Greenhouse of the New York Times notices the blog post and writes it up for the paper.  Interesting little story.  So why does the Times put it on page 1 today?

Because, as Greenhouse puts it, the factual error went to a “central part of the court’s analysis.”  It seems that when Justice Kennedy cited just six states that have the death penalty on their books for child rape, he asserted that this penalty did not exist in any federal jurisdiction either.  But in 2006 Congress added child rape to the offenses that can earn the death penalty under the Uniform Code of Military Justice.  As Dwight Sullivan, the milblawger, puts it, ““We’re not talking about ancient history.”

How did this fact escape unnoticed in Justice Kennedy’s opinion–not to mention the dissent of Justice Samuel Alito?  The Justice Department took no interest in the case, filing no amicus brief.  Should it have?  Did anyone in the military justice branches of the armed forces think to point out to their acquaintances in DOJ, as the case made its way to a Supreme Court decision, that a recent enactment of the Congress would be affected?  Did none of the clerks at the Court think to look this up?  Did any of the justices think to ask them to?

Should there be a flap about this in various quarters of the government?  Probably.  But will it make any difference?  Certainly not.  The citation of what legislatures have and haven’t done is just window dressing for the real ground of decision in these Eighth Amendment “evolving standards of decency” cases–namely, the impulses of the justices themselves.  As Justice Kennedy put it, “objective evidence of contemporary values . . . does not end our inquiry. . . . We turn, then, to . . . our own understanding of the Constitution and the rights it secures.”

It’s hard to know which is less reassuring.  When the Court consults “objective evidence of contemporary values,” it engages in something other than legal reasoning.  When it consults its “own understanding of the Constitution,” like as not it is shouting down a well.  The echoes that come back will substitute for the authentic Constitution.

But it is telling, in a way, that the very recent opinion of the Congress that child rape deserves the death penalty was not only not given any weight.  It was not even known to the justices at all.



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