SG Seeks Kennedy Rehearing:

The Solicitor General's office has joined the state of Louisiana in requesting reconsideration of the Supreme Court's decision in Kennedy v. Louisiana, in which the Court held the death penalty for child rape to be unconstitutional. This is particularly interesting because the SG did not participate in the case initially, as the office had overlooked the fact that the constitutionality of a federal law -- in particular a provision of the UCMJ providing for the death penalty in cases of child rape -- could be affected by the Court's decision. Lyle Denniston has more details and a link to the motin at SCOTUSBlog here.

Justice Kennedy of the USSC (not the Kennedy who was convicted of child rape and sentenced to death by the Louisiana state court) noted correctly the relatively few (6?) states that allowed the death penalty for this crime and incorrectly what federal law allowed for it, concluding that there was not a "national consensus" that the death penalty was fitting punishment. Should what federal law provides, especially if recently enacted by Congress as was the death penalty for child rape under the UCMJ, be trump over what state laws provide? Doesn't the Court owe Congress more deference on a question like this one, i.e., not statutory interpretation, but whether the punishment constitutes "cruel and unusual punishment," then to that of individual states?

What should be the tip point on this question - a dozen states allowing the death penalty for child rape would be sufficient to find it acceptable? Two dozen states? Two dozen states plus the federal government? (I think that here, with the federal government provision recently enacted by Congress, that should probably be enough on what is more a legislative and than judicial determination.) Does "national consensus" mean the majority of states and the collective national opinion as expressed by Congress, or what?
7.29.2008 12:50pm
oops, typo ("then" rather than "than")

Is this a "show of hands" type question? In what sort of cases, if any, other than these penalty cases, does the Court's decision turn on whether there is a "national consensus" or not? Cut point on IQ sufficient (capax doli) to be executed? Of sufficient age to be put to death for a capital crime?
7.29.2008 12:57pm
John (mail):
Whether or not there is a national consensus on anything is a question of fact that should be litigated if it has any bearing on the Constitutional analysis. How many states have statutes on point is only a tiny portion of the question, since the real issue is not how many states or people want that penalty but how many think a state should be free to select that penalty.
7.29.2008 1:03pm
andy (mail) (www):
If the Court decided the case on its "own independent judgment," what difference does a congressional statute make?
7.29.2008 1:06pm
Stephen C. Carlson (www):
I wonder if the Supreme Court would end up modifying the opinion to narrow the holding to rape by civilians, and leave the military statute for another day.
7.29.2008 1:08pm
Awesome. I love it. Your move, Justice Kennedy.
7.29.2008 1:16pm
Bored Lawyer:
The whole state-counting thing is highly misleading for several reasons.

The fact that a State does not have the death penalty for child rape might be because it feels that the punishment does not fit the crime.

Or, it might be because (1) it believed that prior Supreme Court precedent precluded such a punishment (the Court previously held that the death penalty was unconstitutional with respect to adult rape; or (2) a State does not believe it is worth years of litigation to attempt to enforce the death penalty in such a case; or (3) cases involving child rape where the death penalty is deserved (i.e. with heinous physical abuse -- see the facts in teh Kennedy case) are rare. Perhaps it never occured to anyone in the State that such a case might arise.

So the lack of a death penalty for child rape in any State simply does not prove what Justice Kennedy thinks it proves.
7.29.2008 1:43pm
but you have a Supreme Court completely unmoored from its constitutional role-why would he or it care. having been found out, look for a one line denied order to be issued. they don't owe us an explanation and secrecy is the order of the day at the Supreme Court in ways that would make the Bush Administration green with envy.
7.29.2008 2:14pm
Dilan Esper (mail) (www):
but you have a Supreme Court completely unmoored from its constitutional role

You know, conservatives can make this claim semi-plausibly when we are talking about abortion or other unenumerated rights claims.

But cruel and unusual punishment is an enumerated right, it is phrased in broad language, and the framers gave us little guidance as to how to interpret it. When the Supreme Court has to interpret a broad, ambiguous portion of the Constitution, that really isn't unmoored from its constitutional role.
7.29.2008 2:52pm
Skyler (mail) (www):
Dilan, there is nothing cruel and unusual about the death penalty. There might be a cruel and unusual way of administering it, but the penalty itself is neither cruel nor unusual.
7.29.2008 3:30pm
Dilan Esper (mail) (www):

But you are assuming your conclusion, which is that so long as a punishment is not cruel and unusual for some crime, it cannot be cruel and unusual for any crime. In other words, the death penalty for a parking violation is constitutional.

I realize that Scalia takes that position, but generally, when your interpretation of a legal text leads to patently absurd and abhorrent positions, that's a good guide that it isn't a very good interpretation.

In any event, the broader point is that the framers didn't opine one way or the other on the issue of whether the cruel and unusual punishment clause included a proportionality requirement.

Again, you can argue that Kennedy v. Louisiana was wrongly decided. That's quite arguable. But what I really balk at is the claim that the Supreme Court is somehow acting outside of its power by merely construing the cruel and unusual punishment clause in a manner that conservatives don't agree with.
7.29.2008 3:41pm
I still don't see why the SC doesn't commission an opinion poll here. Let's not pretend that judges know any better than other adult citizens how to apply some of these general provisions.

And the evolving standards of decency doesn't add anything to cruel and unusual. Just Lochner era nonsense.

Also, the fact that the 2 major presidential candidates are in favor of the death penalty for child rapists should probably tell you something about how the public feels. Maybe they can submit amici briefs. You know they can read the polls and have their finger on the pulse better than the 9.
7.29.2008 5:03pm
Dilan Esper (mail) (www):
I still don't see why the SC doesn't commission an opinion poll here. Let's not pretend that judges know any better than other adult citizens how to apply some of these general provisions.

It isn't that they know more. It's that they have been appointed as judges / justices because of their JUDG[E]ment and because they are supposed to do JUSTICE.

In other words, this is their job.

Look, if you guys don't like having a broad, amorphous cruel and unusual punishment clause, propose its abolition. But as long as it is in the Constitution, judges are going to have the power to interpret it. And since it gives little guidance, it is going to come down to what the judges believe.

By the way, this is far from the only provision of the Constitution that gives judges little guidance. When some newfangled kind of search (such as thermal imaging or drug testing) comes to the Court, they have to make a call as to whether it is "reasonable" or not and under what conditions. Fines have to be evaluated to determine whether they are "excessive". There are many examples of this.

This is the Constitution we have. I am sorry that it doesn't always give us the nice bright line rules that conservatives prefer.
7.29.2008 7:03pm
I have to say I completely agree that you can't accuse the Supreme COurt of going outside its mandate on this one, whether one agrees or disagrees with the decision. The prohibition of cruel and unusual punishments is an enumerated right and the language is ambiguous. There is a constitutional mandate to determine what the words mean. Therefore, coming up with a "wrong" interpretation of what that mandate requires is nowhere even near the same ballpark as orders unmoored from any mandate at all. It is inevitable that a court will make errors, just as it isevitable that people will disagree (without it necessarily being clear to outsiders who is right and who is wrong.) Occassional errors in judicial judgement are a price of having a judiciary (just as occassional errors in legislative judgment are a price of having a legislature, or having human beings do any job at all.). We agreed to pay that price when we accepted the form of government we have. Doing ones job fallibly, in a way someone else might think imperfect, is not even remotely similar, no comarison at all, to assuming power and control over other people's lives that the job discription never gave one. It's one thing to say that a specific clearly potentially applicable provision of the constitution requires striking down a law. It's another thing to strike down a law because one thinks it inconsistent with humanity's "transcendental nature" or some other formulation of ones own devising that the States and the People never agreed to impose upon themselves. I agree it's a critically important distinction to keep in mind.
7.30.2008 11:03pm
As to the SG's action, it would seem straightforward. He has a duty to defend Federal statutes, even when -- as appears to have been the case -- he, also being fallible, lets that duty slip through his fingers the first time.
7.30.2008 11:05pm