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Most of you have probably already seen Linda Greenhouse's articles yesterday and today, reporting that in last week's Kennedy case involving the death penalty for child rape, the court, its clerks, the parties, the several amici, and the solicitor general all somehow overlooked the fact that Congress enacted a statute two years ago that provides a possible penalty of death for U.S. service members convicted of that crime. Apparently the only person who knew anything about it was ... a lowly blogger, civilian Air Force lawyer Dwight Sullivan! (Kudos to Mr. Sullivan.)
We're having a bit of a discussion about it over at the Federalist Society Supreme Court roundup blogfest. Chuck Cooper commented that the omission is "powerful evidence that undercuts, to say the least, the majority's intuitively implausible finding that there is a national consensus against capital punishment for the crime of child rape, no matter how brutal the assault, how young the victim, etc., etc." Mark Tushnet followed up:
I was struck by something a bit different -- a truly stunning failure of advocacy on the part of what has come to be described as an increasingly professional Supreme Court bar. The approach the Court was going to take was clear, and indeed the briefs focused on the kind of survey of legislation that one would expect. How the lawyers (particularly for the state, but also for amici supporting the state) failed to locate an obviously relevant statute -- it's an act of Congress after all, they're not that hard to find -- is truly astonishing. Were this private litigation, I'd advise a client to have a serious discussion with the lawyers about their fees.
I agree with Mark, to this extent: The failure of any of the parties and amici to flag the new statute is rather remarkable, especially since there were very experienced SCOTUS lawyers representing amici on the respondents' side, including Ted Cruz and Chris Landau. Nor is the statute listed on this Web site, which evidently was a principal source that several of the amici relied upon.
More remarkable still: As Linda Greenhouse reports today, no one in the SG's office discovered the law, either. The DoJ Statement is as follows:
We regret that the Department didn't catch the 2006 law when the case of Kennedy v. Louisiana was briefed. It's true that the parties to the case missed it, but it's our responsibility. Yesterday, shortly after learning of the law, we advised the Clerk's office at the Supreme Court. Only parties to a case may petition for rehearing. If a petition for rehearing is filed, the Department will review the petition and consider what steps are appropriate, including possibly seeking leave of the Court to provide our views on the petition for rehearing.
Although no one has been sentenced to death for child rape under the law, we note with regard to the continued constitutionality of the law that the Supreme Court has not resolved the question whether its Eighth Amendment jurisprudence applies with equal force in the context of military capital punishment. Cf. Loving v. United States, 517 U.S. 748, 755 (1996).
Presumably none of the memos to the SG from the components and interested agencies mentioned it—because if they had done so, the SG would undoubtedly have appeared as amicus on behalf of Louisiana. (I suspect no one in the Criminal Division knew about it, and it probably did not occur to the SG's Office to ask DoD for a recommendation. On the other hand, if folks in DoD were aware of the law, presumably they would have sua sponte flagged it for the SG. Hmmm ...)
So, let's assume that the states were unaware of it. And so was the SG's office and the rest of DoJ. And possibly even most or all of the relevant authorities at DoD. And all of the amici. And the court and its numerous clerks. And that this provision was included on the 129th page (in Statutes at Large) of a 420-page omnibus authorization bill. And that the provision was not discussed in the Conference Report (except where the bill language was set out). And that it was not so much as mentioned, let alone debated, by any legislator on the floor of the House or Senate. (My own cursory Westlaw search confirms this!) If all that is true—if virtually none of the legislators who voted for the bill knew about this amendment to the UCMJ, and it received no public attention whatsoever, for almost three years after its appearance in the bill and more than two years since the president approved it, and it was never implemented, and none of the very fine lawyers working on the case in the government or outside it discovered it in their legal research, then is it really the case, in any meaningful sense, that its enactment "undercuts, to say the least," the court's assumption that there is a "national consensus against capital punishment for the crime of child rape," as Chuck suggests?
I should add that, as the DoJ statement suggests and as Orin Kerr stresses, it's also not at all clear how statutes governing the U.S. military bear on, and are governed by, the court's "evolving standards of decency" doctrine.
The court almost certainly will not grant the (expected) petition for rehearing—but I wouldn't be surprised to see a dissent from denial of rehearing in which Justice Scalia pounces on this oversight.
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Suppose that we simplify the court's Eighth Amendment jurisprudence greatly and pretend that a "national consensus" against a certain type of punishment exists when 10 states or fewer authorize that punishment and not otherwise; and that when a national consensus against a punishment comes into existence, the courts will strike down that punishment in any remaining state that continues to use it or any state that introduces it.
This rule acts as a ratchet. When a punishment falls to the 10-state threshold, it ceases to be permissible. If people in the various states change their minds and come to believe that the punishment is justified, legislatures will not be able to enact the punishment without violating the Constitution. It seems likely that they will therefore not bother, and so a new consensus in the other direction cannot get started. Perhaps, in the rare instances when a national consensus will develop quickly, dozens of states will enact the law even though it violates the Constitution, and courts will recognize a change in the consensus. But this is likely to be rare, and it loads the dice against national consensuses developing in favor of harsher punishments.
If the Eighth Amendment is just about national consensus or some such thing, why can't a consensus emerge in favor of a punishment that previously had been barred? The dissent in Kennedy v. Louisiana makes this argument, which is acknowledged but rejected (without any attempt at justification, as far as I can tell) by the majority.
Is there any justification in political, constitutional, or moral theory for such a ratchet? I don't see one. There is an old, simple-minded Whig view that human history reflects progressive moral development, and perhaps the idea is that courts can prevent temporary backsliding caused by public overreaction to ephemeral events—and such rhetoric about society "maturing" can be found in Justice Kennedy's majority opinion. But this view took a hit in the 1930s and has never recovered. And even if it were correct, a society might "mature" by introducing new harsh punishments against behavior—such as spousal and child abuse, or, say, honor killings of daughters—that earlier generations found unobjectionable. Current Eighth Amendment jurisprudence, or at least the logic behind it, would block such moral evolution.
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