Kennedy blows it on death penalty case

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.”

His titled his blog post “The Supremes Dis the Military Justice System.”

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Any losing party in the Supreme Court can file a petition within 25 days asking the justices to reconsider their decision. Granting such a petition requires a majority vote. Although these petitions are filed rather often, they are, not surprisingly, almost never granted.

R. Ted Cruz, who argued the case in support of Louisiana on behalf of a coalition of 10 states, said in an interview that the chance that the court would reconsider the decision was “extremely unlikely” even if Louisiana brought the omission to the justices’ attention. “A member of the majority would have to change his mind, but it’s obvious that both sides gave this case very careful consideration,” Mr. Cruz said. The vote in the case was 5 to 4.

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Usually the justices law clerks also research for relevant law. Kennedy should change his mind about this case, but probably will not. With Congress passing the law within the passed two years, it just blows his evolving standards argument out of the water since it applies to child rapes in all the states and territories where military personnel are assigned. It was a bad decision before this came to light and now it is worse.

The evolving standards test is pretty much a one way street for the anti death penalty argument, since it is now impossible for 40 other states to pass such a law.

Andrew McCarthy looks at the underlying silliness of the "evolving" standards argument.