Question About Rehearing in Kennedy v. Louisiana:
If you're a critic of the Supreme Court's opinion in Kennedy v. Louisiana — as I am — and you think the Supreme Court would very likely reach the same result if they grant rehearing — as I do — wouldn't you rather the Court deny the petition for rehearing?
Here's my thinking. If the Court denies rehearing, the precedential value of the decision will be at least slightly tarnished for the future. The argument will be left open in a future case that the Court was wrong because it missed the military law. On the other hand, if the Court grants rehearing and reaches the same result, then not only is the precedent strengthened but the law's ability to cabin the Justices' policy preferences is weakened. Remember, the notion of head-counting is supposed to limit judicial discretion, at least a bit: The idea is that it makes it harder for the Justices to just vote their preferences because the head count provides some objective evidence. The limit is weak, to be sure, as cases like Kennedy and Roper suggest. But isn't a weak limit better than a weaker one -- or even no limit at all?
In his update below, Jonathan suggests that an amended opinion reaching the same result would be an improvement because it would be more honest. But if you're a critic of the decision, isn't a bit of dishonesty preferable? In a precedent-based system, it's usually better to lose in a questionable decision than to have the door really slammed in your face. At least that's the case unless you think the slamming door would cause such uproar that the Justices would feel intense pressure to take a different path. But, for better or worse, I doubt that's very likely here.
Here's my thinking. If the Court denies rehearing, the precedential value of the decision will be at least slightly tarnished for the future. The argument will be left open in a future case that the Court was wrong because it missed the military law. On the other hand, if the Court grants rehearing and reaches the same result, then not only is the precedent strengthened but the law's ability to cabin the Justices' policy preferences is weakened. Remember, the notion of head-counting is supposed to limit judicial discretion, at least a bit: The idea is that it makes it harder for the Justices to just vote their preferences because the head count provides some objective evidence. The limit is weak, to be sure, as cases like Kennedy and Roper suggest. But isn't a weak limit better than a weaker one -- or even no limit at all?
In his update below, Jonathan suggests that an amended opinion reaching the same result would be an improvement because it would be more honest. But if you're a critic of the decision, isn't a bit of dishonesty preferable? In a precedent-based system, it's usually better to lose in a questionable decision than to have the door really slammed in your face. At least that's the case unless you think the slamming door would cause such uproar that the Justices would feel intense pressure to take a different path. But, for better or worse, I doubt that's very likely here.
Related Posts (on one page):
- Question About Rehearing in Kennedy v. Louisiana:
- Tribe on Kennedy v. Louisiana:
- SG Seeks Kennedy Rehearing:
- Kennedy Petition for Reconsideration:
- The National Consensus on Capital Punishment for Child Rape:
The state laws imposing the death penalty option on child rape cases were relatively new and a number of states were actively considering passing such laws in their states, as well.
It could be argued that we were seeing a standard evolving into a national consensus.
With Kennedy v Louisiana, was SCOTUS, wrongly and intentionally, stopping a new evolving standard which would have become a national consensus, absent SCOTUS' interference?
The newest "constitutional" guide for SCOTUS? The preemptive stopping of evolving standards and, thus, national consensus.
SCOTUS' evolving standards doctrine and the national consensus "standards" are both prone to this type of constitutional perversion - the alchemy of highly strained legal arguments derived from personal opinion.
How bad could this new SCOTUS interference be?
There was a national consensus for the death penalty for child rape cases.
See Jim Lindgren's, A “National Consensus” in Favor of the Death Penalty for Child Rapists"
volokh.com/posts/1214447764.shtml
And a July, 2008 Quinnipiac National Poll
By a 55 - 38 percent margin, voters favor the death penalty for a person convicted of raping a child. Women and men are consistent in their support.
Another example of SCOTUS' phony consensus and evolving standards doctrine is this,
A phony 'consensus' on youthful killers,
by Jeff Jacoby, Boston Globe op/ed, March 6, 2005
NOTE: As a firm adherent to the reality that incentives matter to people, including criminals, I was concerned that if the sanction options were equal for child rape and child murder that some rapists would be more prone to murder their victims. Therefore, I was not a proponent of the death penalty for child rape.
I agree w/ Orin that it may not be the best result in the narrow sense of this bit of law, but it may be the better result for the country, since having the Court's self-appointed status made perfectly clear will certainly affect politics in this country...
I suggest the answer is if you are a moderate Republican who thinks that the Supreme Court is usually a good institution but got this single case wrong (as OK does, I think), you would prefer to leave the opinion intact. If you are a movement conservative who wants to fundamentally take down the Court, you would prefer that the Court make crystal clear that it is simply imposing policy preferences, as leverage for a broader social revolution.
You seem to be under the impression that people prefer truth over lies, and that the truth will eventually win. Hence, the assumption that the door isn't really slammed in your face through dishonesty, because the truth will cause the door to open. There is no such evidence that this is the case, especially when you're talking about Judges and lawyers.
I'd much rather hear the Court abandon its pretense that it is actually judging instead of legislating in cases such as these. There's a reason for the pretense and the fabricated deceptions in these decisions: the Court finds it useful to mask its operations in order to continue exercising such power. Otherwise, they would just come out and state that they're outlawing something or sanctioning something because that's the way they feel.
There's a reason the Judges are lying to you.
I disagree with your framing of this, although I do agree that there is a gap between those who would rather lose gloriously and those that would rather not.
DangerMouse,
You misunderstand my post -- please read it again.
If, like me, you feel they 'rule first, justify later', it doesn't matter whether they rehear or not. No rehearing is a giant middle finger to the American people which, while not so nice, could very well serve as the point at which the public pushed back against the Court's power. And if they do rehear, it will be comical and illuminating to see Kennedy squirm as he works to ignore the facts that undermine the basis he used to justify his decision.
If, on the other hand, you still believe the Court (as well as the judiciary as a whole) is full of honorable men and women trying to do their best to put aside their personal feelings in order to come with up decisions that are well founded in precedent, common sense and a strict reading of the Constitution, then I think you'd like the Court to deny a rehearing as seeing Kennedy dance is going to run a big risk of shattering your (nice, but naive) illusions.
To those who think they're a bunch of power hungry jerks, it's a win-win. To the rest, it's a no-win.
The original judgement was based on a good deal more than the one mistake they made about federal law. There was clearly an error in the reasoning in the opinion, but that doesn't mean the result was in error.
If I give you ten reasons about why I think ice cream is good, but it turns I was mistaken about reason 8 ("helps me maintain my trim figure"), that doesn't mean I don't like ice cream any more. It might mean that, but there's it's entirely plausible the nine reasons I was right about are still enough to convince me.
The argument will be left open in a future case that the Court was wrong because it missed the military law. On the other hand, if the Court grants rehearing and reaches the same result, then not only is the precedent strengthened but the law's ability to cabin the Justices' policy preferences is weakened.
I don't see the logic behind your reasoning:
1. What future case? The Court made its decision, period.
2. Precedent has no meaning to the Court. As PP v. Casey made perfectly clear, it is just a facade to cloak preferences. Precedent will be upheld until a judge decides he doesn't want to. It has nothing to do with the operations of the Court at all.
3. There is no "law" that "cabins" the Justices at all. If it exists, would you please point it out to me? I'd love to hear about it. It sure as hell isn't Precedent.
The fundamental problem is that if you are trying to play a game whose rules are drafted by your opponent, you will lose. That's why you can't expect the Judges to abide by some idiotic pretend thing like precedent, whether if it helps or hurts you. They will not be so constrained. The way to deal with improper Supreme Court decisions is to take up other methods, or expose people to the sham of the Court. That's why that despite the so-called "protections" of Roe, it is impossible to get an abortion in South Dakota because the abortionists have been driven out of the land. And that's why you get commenters here talking about "prision justice" for child rapists. I might not favor "prision justice" but I do favor exposing the sham of the Court.
Frankly, an honest new opinion may give the lie to the whole "evolving standards" jurisprudence.
Is there a rational metric to apply here? How many states must pass a similar law each year to keep up the appearance of a consensus? Do some states get extra points for passing laws through a notoriously slow legislature particular to that state? Does California lose Consensus Points because they're always the first to pass any old regulation that comes around? How many Consensus Points does a lobby have to collect before they can redeem them at the SCOTUS bench for a shiny new national policy? (tax and shipping extra, of course!)
Point being, you can't logically claim that an existing "national consensus" in favor of a policy (in the form of implemented laws) is necessary for that policy to survive scrutiny... if you're going to make the judgement call while the laws that form that "consensus" are still being passed. To do so would ensure the only consensus that matters is among the majority of SCOTUS justices, and we could just drop 1/3 the branches of government and save some tax dollars.
1) Kennedy v. LA is just the latest round in the decades-long debate over whether and when the Supreme Court should chip away at the death penalty. The decision itself has almost no impact in practice; its value is as a baseline for the many cases ahead. So I'm thinking of the many cases ahead.
2) Of course precedent has meaning. In fact, Kennedy v. Louisiana is quite possibly the more loyal to the key precedent in this area, Coker v. GA. Don't you agree? Or does the precedent of Coker have no meaning to you? I'm curious about that, actually.
3) I recognize that there's a role for way over the top rhetoric; it's very fun to write, among other things. But the reality is that matters are much more shades of gray than you imagine. I'm making a point based on my experience with Supreme Court decisionmaking and what I believe is an accurate sense of how the Court works.
Spitzer,
I think Marty Lederman already explained why that's actually not so hard to do.
The decision itself has almost no impact in practice; its value is as a baseline for the many cases ahead. So I'm thinking of the many cases ahead.
That's fine, but don't think that arguments or strategies will make a difference. All that matters is whether you have judges who want to make the law what they think it should be, or if you have judges who don't do that. Your attempt to divine the way the Court will be constrained or unconstrained in the future based on a mere re-hearing of this case would be full of comedy if it weren't tragic.
In fact, Kennedy v. Louisiana is quite possibly the more loyal to the key precedent in this area, Coker v. GA. Don't you agree? Or does the precedent of Coker have no meaning to you? I'm curious about that, actually.
I said that the Court will continue to uphold precedent, until it doesn't. What's so confusing about that? Precedent only has value if a Judge wants it to have value. Corker could've been overruled or upheld. Saying that a decision is "loyal" to precedent is merely saying that a Judge's whim today equals a prior judge's whim yesterday. There is no legal analysis in upholding precedent - none.
But the reality is that matters are much more shades of gray than you imagine. I'm making a point based on my experience with Supreme Court decisionmaking and what I believe is an accurate sense of how the Court works.
I am not saying that ALL judges decide based on their personal preferences. For instance, the majority opinion in Heller clearly was not based on personal preferences (the dissent clearly was). To that degree there are shades of gray. But in general, the Court is wholly corrupt because most of the time the decisions depend not on any "law" but on the preferences of the judges. There is no "law" in Roe, no "law" in Casey, no "law" in Kelo, no "law" in Coker, no "law" in Kennedy. And you have an institutioal interest in avoiding that reality.
Dangermouse, what do you think the Justices in the Heller majority think as a policy matter about an absolute prohibition on hand guns? Do you think they actually favored it? Perhaps you think Justice Thomas loves gun control? And why would Justice Kennedy ignore his preferences in Heller and follow them in Kennedy?
And you didn't answer my question about Coker. Would you follow it, or do you ignore all precedents you don't like? It's actually a serious question to see if you are principled or an unprincipled hack.
One more question: Are you by any chance a political conservative? I ask because you seem to think every politically liberal decision is wrong and every politically conservative decision is right. If it happens to be the case that you are yourself a conservative, then it seems that you are just as guilty as all of the judges you criticize: In every case, the result that you announce as correct is exactly the result that you favor as a policy matter.
That is the entire with the problem with the "evolving standard" doctrine. You are stopping the evolution of the standard.
An amendment to the constitution giving Congress the ability to over-rule the Supreme Court; impeaching Justices who are seen to be legislating from the bench; term limits; or, as has been done in the past, ignoring Supreme Court rulings that fly in the face of the Constitution as seen by the Executive.
All are problemlatic, obviously, but so is having a Supreme Court that operates without checks on its power. All the other branches have checks and balances, but in practice, of late, the SC has operated with fewer than intended (IMHO). It was clearly never seen as an alternative legislature for one faction in government.
I agree w/ your point about the loss of confidence in a country's court system, but, as many of the posts above indicate, that's already happening. The political question is what to do about it.
And the problem exists whether it's the left or the right legislating from the bench.
I see. So now the Court in Brown is to be criticized for not following Plessey? I don't know how many times I have to re-state this, but precedent only has value if a judge wants it to have value. You seem to think that prior decisions are supposed to have some inherent weight. I don't look at things that way. Prior bad decisions are still bad decisions. Prior good decisions are good decisions. Unless you are saying that any time a court overturns precedent it is "unprincipled" then I don't understand your point. There can be a very good reason for overturning precedent, or a bad reason. Maybe the precedent was the correct decision and the overturning of it is bad. Maybe the precedent is the wrong decision and overturning it is good.
As far as Corker goes, it is clear that the Constitution does not prohibit the death penalty for the case of adult rape or child rape, so I would've overturned Corker. I don't see how that makes me an "unprincipled hack" anymore than overturning Plessey makes someone an unprincipled hack. I don't deal in precedent, I deal in the Constitution (and for the record, I note that it's not for nothing that law professors teach Court Cases more than they actually teach the inner-workings of the text of the Constitution). But perhaps I was right that you do have an institutional interest in pretending that the Court doesn't lie a lot of the time.
you seem to think every politically liberal decision is wrong and every politically conservative decision is right. If it happens to be the case that you are yourself a conservative, then it seems that you are just as guilty as all of the judges you criticize: In every case, the result that you announce as correct is exactly the result that you favor as a policy matter.
Orin,
It's not my fault that liberals mostly are engaged in trying to legislate their preferences from the bench. But you presume too much, anyway. If you want to know, I do think that Scalia has gone too far in watering down 4th amendment protections because of "new police professionalism." Sorry to burst your bubble.
That's not true, but I appreciate your attempt to explain my position. I don't want courts to be wholly transparent. I do believe the Constitution sets limits. For instance, despite public pressure to crack down on crime, I disagree with the extensive latitude that Scalia has given the police.
I also believe in objective reality, and that good cases should be upheld. I just recognize that in this current environment, a good case won't be upheld by a corrupt judge. When I say precedent has no value, I mean that as a descriptive statement. Good cases should have precedential value, bad cases should not. Unfortunately, in this current environment, the reverse is true.
As far as "other means," I don't think its possible to correct a corrupt institution by dealing with that corrupt institution. Thats why I praise the efforts to drive out the abortionists: it solves the problem by avoiding the court entirely. And it's also a realization of reality. People will only accept dealing with a lie for so long before other methods are employed.
The "endgame" is to bring some sanity back to the Court. I do think institutional corrections are required, in an attempt to make the people on it more humble to the idea that their preferences should not be legislated. There are institutional ways to deal with that, mostly involving decreasing the Court's power to limit its ability to damage things. Exposing the current court as a sham shouldn't be interpreted as a desire for anarchy.
Your schtick about how I must be trying to mislead others is indeed laughable. Let me try again, in case you have any integrity at all.
1) Are you a political conservative? Answer the question honestly and directly, please.
2) Do your views of constitutional law match your personal policy preferences in the area of abortion, the death penalty, the second amendment, takings law, and affimative action?
3) Are there ANY cases where there is any difference between your view of good policy and your view of constitutional law? Your evasive answer before was to say that you disagreed with something Justice Scalia wrote; obviously that does not answer the question.
Sorry to be aggressive here, but you have advocated assaulting Supreme Court Justices for being unprincipled and have repeatedly impugned my integrity. Now that I see that you are a total hack yourself, I want to get out your ideas for everyone to see.
That is false. DangerMouse favors undemocratic results when and only when they favor conservative politics: so he celebrates Heller and hates Kelo. If he were actually a principled advocate of judicial restraint, that would be another matter.
I don't think anyone seriously believes there is any principled legal reason why these cases turn out one way or the other. I am personally a fan of Orin's "if striking down the death penalty will remove more than 100 people from death row, it will be upheld." It's a believable summary that nicely characterizes the inherently non-legal nature of these decisions.
If the Court was using a principled or rational test for when the death penalty is allowed the 8th amendment, it wouldn't be necessary to constantly bring these cases over 200 years after the 8th amendment was ratified. Of course, we once had such a stable jurisprudence, but it fell out of fashion and was abandoned.
1. Yes.
2. No.
2a: I would like abortion to be outlawed entirely, in every state and jurisdiction, yet I recognize that the Constitution does not require abortion to be outlawed and that states can pass laws protecting it.
2b: I support certain punishments that society might consider cruel, like castrastation for child sex offenders, yet I recognize that the constitution probably forbids that. I support the death penalty.
2c: I think that people should have the right to own weapons up to and including your own personal Batmobile. But the Constitution would probably forbid that. I support the right of people to own guns.
2d: I would probably outlaw eminent domain entirely, but I recognize that the Constitution permits it for certain uses.
2e: I would end race and sex-based quotas and also the ability of government to take into account such distinctions in hiring, college admissions, etc. Here, I think my preferences are probably lined up with my views on Constitutional law.
3. You said that I only agreed with conservative cases (obviously I do not, since I disagree with Hudson v. Michigan). However, to distinguish between the constitutional law and policy, I agree with the policy in Raich but reject the decision of that case. It's probably a good idea for Congress to regulate marijuana, but that's a traditional state police power that states are free to implement or not implement. I also disagree with the decision in Morse v. Frederick, but think it's probably a good idea to have certain controls on student speech that might be violative of the 1st amendment.
Hack indeed. You just like straw men.
What happens if the Court grants a rehearing and then Louisiana decides to drop the appeal? What is the precedential effect? Does the order granting rehearing automatically vacate the decision? If so, I think that's the best case: vacate, take the precedent off the books, and give states and Congress a few more years to move the trend line in one irrefutable direction.
but this case seems to explain that one reason death is disproprtionate for child rape is becuase there is no intnetional killing.
so does this foreclose the death penalty for felony murder too?
I think Marty Lederman already explained why that's actually not so hard to do.
___
Orin,
I concede that military jurisprudence has played little or no role in the development of the "evolving standard" jurisprudence. But that empirical fact does not make military law de minimis from a constitutional perspective. The courts martial represent a parallel system of criminal law that is just as traditional as federal criminal law, and are bound by the same constitutional requirements (albeit with certain limitations). While military law has often been treated as a poor stepsister to civilian law, in no small measure due to the fact that the military bar is small and relatively insular, and has been disparaged or ignored accordingly, I do not think it intellectually honest simply to ignore military law when conducting the headcounting exercise envisioned in the "evolving standards" jurisprudence - if the Court is willing to cite UN Conventions, UK legislation from 1930-48, and China's declared intention not to execute juveniles as persuasive precedent (Roper), how can the Court honestly ignore federal military law, enacted by the US Congress?
That would seem to be the case from any normal court, but this is Justice Kennedy's court, and normal legal analysis does not apply. He chooses the desired outcome and an opinion which is hopefully not too ludicrous is then cobbled together to justify it. Facts are then invented as necessary, and citations chosen, or studiously ignored, to fit.
IMO he will let a later Court decide that Kennedy v. Louisiana requires a holding that the death penalty for felony murder is unconsitutionally severe.
Your deep corruption runs from every pore, exposing the depravity of your wicked ways. The Revolution will come, and it will come first for Dangermouse.
Oops, sorry, I forgot to turn my Dangermouse-Rhetorico-Meter off. Wait a second. Okay, got it. Seriously, your preferred policy views coincide with your view of the Constitution far, far, far more than Justice Kennedy or any of the liberals. They are often vote against their preferences; it sounds like with you it would be tremendously rare -- you mostly come up with examples that would never actually be litigated before the Supreme Court. Given that, it's really quite lame -- or deeply unself-aware -- to pretend that you are more principled than those you are criticizing. Perhaps you think it's okay for you to be unprincipled and result-oriented but it's not okay for them, but if so I think you need to explain why that is. Or maybe the answer is to tone down the rhetoric a bit to reflect the fact that you yourself are guilty, too.
Servicemen are not civilians. The government does not train civilians in the use of weapons, arm them with weapons they did not pay for, authorize and encourage them to use those weapons against others, etc.
California courts hold that employers are not vicariously liable for rapes by their employees absent special circumstances. Among those special circumstance are the employees being police officers who obtain and secure their victims using their authority as police officers, i.e., the authority given them by the state.
It is proper for the UCMJ to impose greater penalties on servicemen who rape children, under some circumstances, than the normal federal criminal penalties applicable for child rape. This includes the death penalty.
Sure a serviceman can be prosecuted under the UCMJ for child rape, on Okinawa or even here in the U.S. on a federal installation, under circumstances identical to civilian offenses. Under those circumstances the holding in Kennedy v. Louisiana might apply.
But when a soldier on the field battle uses his military-supplied weapons to hold a 12 year-old girl's parents at bay while he rapes her, his means of doing so were provided by the United States government and he is acting in his capacity as a solider. THAT arguably justifies the death penalty against constitutional attack even under Kennedy v. Louisiana.
And this difference means that the UCMJ provision under discussion should, under normal consititutional principles (i.e., recognizing that we're dealing with a Supreme Court which tramples on those whenever it feels like doing so - this is particularly true of Justice Kennedy) be attackable only on as applied grounds.
This new UCMJ death penalty offense has never been applied so we might be in for a long wait before its consititutionality is challenged.
In any event, the relatively unique nature of this UCMJ penalty IMO makes it unnecessary and even inappropriate as a vehicle for ordering a rehearing of Kennedy v. Louisiana. And I'm a death penalty supporter who feels the latter was wrongly decided.
If your goal is to convince me that the Court is generally not creating constitutional law that favors the policies of the judges that vote for it, then perhaps you can provide examples of that. I could be the most biased person in the world, but that doesn't matter because I'm not on the Court. I could be as bad as you say, yet the Court could still be as bad as I say, and the fault would be with the court because they have the power. You're not really providing an argument that I'm wrong. All you're saying, at best, is that I'm just as bad.
Surely you can do better.
Many of the posts assume that the Kennedy v. Louisiana dissenters would support rehearing. Do you think this is true? After all, they might take a more conservative view of what rehearing is for. Generally, "I forgot to put it in my brief" or "I neglected to file an amicus" isn't grounds for recon.
I've lost too many otherwise winning cases because someone didn't make a timely objection. The State of Louisiana and the SG's office should not be held to a lower standard.
On a different note, the dissenters might also think more strategically. If the Court reconsiders on the merits, Louisiana will get its case heard by the same nine that just rejected its argument. If it brings another case in a couple of years, it might have a shot at making a good faith argument for reversal to a different bench.
You often misjudge me, based on your comments, and this is yet another example of it. I am often critical of the Supreme Court's decisions as a product of the Justices' policy preferences, both on the left and the right. So you are asking me to change 180 degrees from my prior positions, which I have held for years, which obviously I won't do.
But you have come out of the gate not with a principled view that both sides are being activist, that both are enacting laws to favor their politics, but rather with a pretty silly view that it's pretty much all happening on one side, with a completely over the top rhetoric about how we should be physically assaulting Supreme Court Justices who write opinions that are unprincipled.
But then it comes to light that, well, you're actually less principled than the people you claim we should be assaulting. All your fire and brimstone is really just at opinions that don't match your policy preferences. It's really, well, lame.
What is my goal? My goal is to encourage you to be more balanced, fair, thoughtful, and principled. I want you to be a responsible commenter, who recognizes his own faults and those of both friends and foe alike. Put another way, I want you to recognize that we are all human here, that we are dealing with human institutions, and that no human being is perfect. So yes, criticize the Court: we all do. But do so fairly on all sides, including your own.
If I had to guess, I would guess that at least some of the dissenters will think pretty much along the lines of my post. But who knows: these are human judgments and exercises of discretion, so they can go different ways.
I did not argue the substantive merits of capital punishment for child rapists. And you may be right that there are substantive differences between the military and civilian milieu that warrant different constitutional treatment under the 8th amendment. However, this does not militate against the Court rehearing Kennedy.
First, if the Court's fundamental basis for holding capital punishment for child-rape to be constitutionally forbidden is to look to "evolving standards of decency", which requires a simple counting of heads, then I think it is essential that all of the criminal laws of the US be counted in this process - on the "standards of decency" front alone, there is no reason to discount military law - or at least, if the Court wants to discount military law, it should be required to say so (and explain why).
Second, if the 8th amendment forbids the execution of civilians for child-rape, but not of soldiers, the Court should explain why and draw the appropriate lines. It is not obvious to me why the 8th amendment forbids one and allows the other, and though I can see valid policy reasons to and fro. For instance, soldiers may surrender certain of their constitutional rights upon elistment, arguing in favor of the death penalty (the "pro" argument). But, on the other hand, many or most military prosecutions arise from acts that do not occur on a military base, or with the use of military equipment (i.e. off-duty soldiers commit the sorts of crimes in their neighborhoods that young men of all stripes commit, something with which military communities around the country are familiar), and while the military courts often cede jurisdiction to the states whenever the crime is committed off-base and civilians are the victims (largely out of informal comity with the local court system/police departments), they do in fact have the right to exercise jurisdiction over every act committed by a servicemember (that's the "con" argument). Therefore,not applying Kennedy to the courts martial positively invites a pernicious kind of forum selection , the Court should address these issues at a minimum.
Third, I strongly disagree with assertions that have been made that Kennedy does not apply to the courts-martial because (a) the Supreme Court made a general ruling on the extent of 8th amendment protections, and (b) did not carve out a special military exception. While the CAAF may find that a special exception does apply, I strongly suspect that it will not (the CAAF has been more than happy to apply civilian protections - and protections greater than those accorded to civilians in certain instances - to the courts martial.
Finally, while you are correct that the 2006 law has not yet been applied, and may not ever be applied (something I think likely because prosecutors won't want to risk it, though they may use the threat of capital punishment to obtain favorable plea agreements in appropriate circumstances), the Court may of course - and does from time to time - tackle an issue on its face rather than as applied.
In short, I do not believe that the Court can, with intellectual honesty, ignore military law in Kennedy, and so a rehearing - even if just a rewrite and reissue of the opinion (which the lower courts do relatively frequently) - is in order.
This was in response to Orin's earlier question, at 3:08:
DangerMouse then responded:
Orin specifically asked DangerMouse: "Do your views of constitutional law match your personal policy preferences in the area of abortion, the death penalty, the second amendment, takings law, and affimative action?"
Didn't DangerMouse's answers indicate that his personal policy preferences differ from his Constitutional views in each of these five areas? Orin responds that "you mostly come up with examples that would never actually be litigated before the Supreme Court. Given that, it's really quite lame -- or deeply unself-aware -- to pretend that you are more principled than those you are criticizing." But, uh, Orin himself asked the questions to which DangerMouse responded.
Orin is usually a very thoughtful commentator, but I don't get his position here at all.
Fun first. You said (my emphasis): "I do not believe that the Court can, with intellectual honesty, ignore military law in Kennedy ..."
I had previously said, "Honesty is not a factor for Justice Kennedy", and ... this is Justice Kennedy's court, and normal legal analysis does not apply. He chooses the desired outcome and an opinion which is hopefully not too ludicrous is then cobbled together to justify it. Facts are then invented as necessary, and citations chosen, or studiously ignored, to fit."
My point was that there is no contradiction between the 2006 UCMJ capital penalty here and Kennedy v. Louisiana. And my reading of the latter was that its holding was not based on a mere numerical analysis of various jurisdictions, though I regarded the non-numerical analysis as especially mendacious.
You also tend to use the word, "should", without giving reasons, as here: "... the Court should explain why and draw the appropriate lines ..."
The Court ruled on the issues before it. Courts are not supposed to rule on issues not before them. IMO Kennedy v. Louisiana would bar a UCMJ death penalty for garden-variety child rape, but differentiating that from the uniquely military battlefield hypothetical I gave (which is not at all hypothetical given innumerable historical examples) requires an as-applied challenge.
What you seem to want is an advisory opinion. Courts are not in the business of advisory opinions.
And you overlook the salutory deterrent effect of the death penalty, particularly as applied to military personnel.
I think I am more thoughtful here than I usually am, actually. Most bloggers just don't bother; maybe I am foolish for actually engaging with the more nutty commenters like DangerMouse, but I guess hope springs eternal.
As for whether Dangermouse's views were different than his policy views, he opted for mostly strawman arguments -- positions that would be completely ludicrous as constitutional readings -- in order to establish his bona fides. So for example, Dangermouse points out that the Constitution doesn't prohibit all eminent domain, and yet he would like to see it all prohibited, as an example of how his views of law and policy differ. But the example is simply bizarre: no one could possibly read the takings clause, which requires just compensation for takings, and say that there can be no takings!
It's not hard to see that if you can include strawman arguments like that, it's easy to say that your views of policy and the constitution diverge. For example, I think that everyone should buy me a beer, but I will concede that the Constitution doesn't require it. Does that make me principled? No -- it just means that I am picking an example so ludicrous that there is no plausible argument for the point.
I suppose my question should have been more careful: I should have asked whether Dangermouse disagreed with actual cases in that area that were closer to his policy preferences than the losing side in those cases -- but I didn't anticipate his strawnman move. Lesson learned.
A postscript here. One of the deterrence justfications for more draconian penalties upon military personnel, for the same offenses as civilians, is that military occupations entail a risk of death far beyond the ordinary risk of death for civilians. I.e., you have to get their attention.
When death in the line of duty is required, ordinary criminal penalties might not be sufficient to deter misconduct. Whether such penalties are necessary for the maintenance of good order and discipline requires a policy decision which the courts are not at all equipped to make. Justice Kennedy and other judicial activists might make such policy decisions anyway, but this rule does normally apply.
And evolving standards of decency do not at all apply to the inherently indecent waging of war.
I disagree with the holding in Kennedy v. Louisiana. I see this Court going straight down the path of California's supreme court in the Rose Bird era, which ended badly. It is now possible that we are seeing the first steps of a path leading to the end of a wholly appointive federal judiciary. I.e., they may so overreach as to end up being elective.
But, legally, and I am as argumentative as any attorney, I just don't see any need for a rehearing of Kennedy v. Louisiana based on this overlooked UCMJ provision.
I'll keep that in mind, especially since he is now basically concluding that I'm less principled than the Court, when in reality I identified Court cases in which I agree with the policy result but disagree with the Court's holding.
I'm certain that I'm not the only one who basically has the opinion that the liberals on the Court are the ones who are legislating their preferences. Yes, as I have mentioned on this thread, Scalia does it too. But the idea that for the most part it's the liberals is NOT a "nutty" position. In fact, it seems fairly mainstream to me. Liberals for years have been legislating from the bench because it has been generally impossible for them to get their national policies enacted by the democratic process. That's why gay marriage is being legislated from the bench, for instance. This should come as no surprise to anyone.
Orin asked me for my policy preferences on 5 matters, and I responded. If he asked me policy preferences on taxes, and I repsonded "A flat tax", would he consider it a strawman argument because there's little chance of it happening? He asked for my ideal policies, I gave them to him. And then I compared them with my views on constitutional law. Believe me, I'd love to make abortion illegal everywhere. I'd love it if the Supreme court proclaimed abortion were illegal everywhere. That would be great. It would also be a sham decision. Same thing for castration for sex offenders. That would be a great idea. It's also unconstitutional.
At some point, the Court's decisions matter. Either the Court has contributed to the murder of 45 million babies, or it has not. Either the Court is permitting government to judge people based on skin color, or it is not. Either the Court is allowing child rapists to escape justice, or it is not. I'm not going to pretend that these decisions are abstract and that no consequences follow, nor am I going to play nice if the Court is eagerly pursuing policies towards a Child Murder or a Racist Society.
I don't ask the Court to be perfect. I'd like it to avoid Evil, at the minimum. And anyone who can read Roe v. Wade and not shudder upon realizing how that horrible and illogical reasoning was all to permit the destruction of 45 million babies, is the one who is nutty. Wouldn't a principled person begin to realize that if the Court is willing to go that far to twist its reasoning, for that kind of result, that there are serious, serious problems? Same thing for the recent Michigan affirmative action cases. Why is it ok to discriminate for 25 years, and then suddenly it wouldn't be? That is absurd. The Constitution doesn't have time limits in it like that, and I'm just not collegial enough to pretend that that sort of decision isn't an exercise in raw political power.
The Court is an oligarchy, Orin, and I want it taken down a peg. Sorry if you disagree, but that's life.
Kennedy in Kennedy issued a ruling on the 8th amendment. That ruling, as is appropriate for SCOTUS decisions, goes far beyond the merits of the case at bar, and affects every criminal statute providing for capital punishment to child rapists. That is, it is not just the law of Louisiana that is affected by this decision; instead, the decision outlaws every state and federal statute that is was in effect on the day of the decision providing for capital punishment for child rapists, every convict on death row for that offense (possibly including habeas petitioners, but that will await a Teague ruling if there is such a convict out there), and every government of every state, territory, and the US that may want to enact such a statute in the future. I suppose that the government of a state other than Louisiana could argue that the decision does not affect their child-rape capital statute, but presumably the state or federal courts in that place would enjoin enforcement on the basis of Kennedy v Louisiana. Pretty standard stuff. On that basis, it is not obvious to me that the decision does not control military law as well, especially because the decision did not expressly carve out the laws of any given jurisdiction from its remit. After all, why should the Kennedy decision affect 18 USC Section 2243 (sexual abuse of a child) but not 10 USC Section 120(b) (UCMJ Art. 120(b), sexual abuse of a child)?
I suppose one could argue cogently (as have you) that military law is sui generis for one reason or another, and one might well be correct. The CAAF might even accept that argument, but those familiar with the courts martial may be suspect otherwise. Moreover, to execute a child-rapist under military law, Art. 120 would also have to survive habeas review, which, in the military system, is actually conducted in the regular federal courts. Does anyone really think that one of the circuits will uphold the constitutionality of the UCMJ's child-rape capital punishment provision, while at the same time holding that capital punishment for child rape is unconstitutional outside the UCMJ? Maybe so, but I doubt it.
I am not arguing that Kennedy v Louisiana should or should not apply to the UCMJ, nor am I arguing that capital punishment for child rape is good or bad policy - whether for civilians or just for military personnel. I am simply suggesting that, as a matter of fact, the military's child rape capital punishment will most likely be held unconstitutional if and when the government seeks to apply it pursuant to Kennedy v Louisiana. As that is almost certainly the case, I think the Supreme Court should at least mention the statute in its decision (whether to include it in the ban, or expressly to carve out an exception).
Finally, on a policy note, I think there are potentially pernicious effects of allowing the military's child-rape capital punishment law to be enforced while holding that all civilian counterparts are unconstitutional. As I explain below, please keep in mind that I am not suggesting that the military's law should be unconstitutional; instead, I am explaining that the potential perniciousness of the distinction is sufficient to warrant the Court's attention. Again I would like to stress that only a small fraction of UCMJ courts martial involve offenses on the field of battle. Most of our servicemen and women spend most of their service at US bases, and most of the acts that qualify for courts martial are done by service personnel in civilian clothes off-base in the US. Some members of the military do much the same sort of thing as their civilian counterparts - they sell or buy drugs, they engage prostitutes, they commit assault and battery, they commit murder and manslaughter, they rape, and they steal. Go to a place like Fort Campbell, Kentucky, and you will find that the local police departments are well-familiar with members of the military, and that they have close relationships with the MPs and CID investigators who participate (to some degree) in every criminal investigation of a member of the military. Most of the federal and state/local police forces have reached some sort of accomodation to avoid conflict over jurisdiction - and it is customary for the military's investigators to cede the primary prosecution to state/local officials when the crime occurs off-base, and to take the primary role when the crime is on-base, but there are exceptions (such as off-base crimes when another member of the military or his or her family is a victim, or acts that particularly offend the United States (like fencing miltiary equipment). But just because there is comity, that does not mean that the miltiary does not have jurisdiction - it merely chooses not to enforce it from time to time. Therefore, if the military's child-rape capital punishment law is constitutional while the civilian counterparts all are unconstitutional under Kennedy v Louisiana, then there would exist a powerful incentive to forum shop the prosecution - that is, to allow the military to take center stage in the prosecution of military members for child rape, whether that offense was committed on- or off-base. Maybe this would be a good policy result, or maybe not. But it is substantial and material, and probably represents an unanticipated outcome of the Court's ruling, IF the Court's ruling does not apply to the UCMJ (which, because the Court did not know of the statute, we cannot know).
In short, the Court should at least re-write its opinion so as to make it plain that it recognizes the existence of the UCMJ provision and, if it does not want that provision covered by the general ban, it should say so and articulate some reason.
NB, I may think the Court's decision was incorrect and lawless, but that is immaterial to my argument above.
Wait, you asked DangerMouse (at 3:08pm):
DangerMouse, an admittedly provocative commenter, specifically responded to each of these questions at 3:48pm in his responses denominated 2a through 2e. To take the first question -- i.e., abortion -- DangerMouse responded that "I would like abortion to be outlawed entirely, in every state and jurisdiction, yet I recognize that the Constitution does not require abortion to be outlawed and that states can pass laws protecting it."
You replied that DangerMouse "opted for mostly strawman arguments -- positions that would be completely ludicrous as constitutional readings." You argued that:
Yes, of course it's impossible to argue that the takings clause means that there can be no takings, but DangerMouse didn't even remotely argue that. You asked him for his "personal policy preferences," and he gave them to you. You apparently wanted to gauge whether DangerMouse is taking his personal policy preferences and basing his Constitutional views accordingly (your comment at 2:23pm: "If it happens to be the case that you are yourself a conservative, then it seems that you are just as guilty as all of the judges you criticize: In every case, the result that you announce as correct is exactly the result that you favor as a policy matter.").
I don't get it, because DangerMouse's personal policy preferences are clearly not aligned with his views of the Constitution, as he himself acknowledges. Nor are they strawman arguments, for many people, for example, believe abortion should be illegal. Also, your example about beer buying is unpersuasive because I really doubt that you've actually argued for such a law. Sure, I'd love a law that requires all billionaires to pay me $1,000,000 per year, but I'm not going to argue for such a law as a matter of policy (whereas I assume DangerMouse will happily argue with you that abortion should be outlawed as a matter of public policy).
As I said, I think you're a very thoughtful member of the Conspiracy and I enjoy reading your posts, but I don't get where you're coming from here (though you said that DangerMouse often "misjudges" you, so maybe there's a history here I don't know about).
Soldiers are not civilians. Non-parties are not parties. Summary proceedings are not trials. The complete absence of a record is not the same as a complete record. The objectives served by public order are not the same as those served by the good order AND DISCIPLINE of the armed forces.
Kennedy v. Louisiana does not mean that the government would be denied an opportunity to present a defense of the 2006 UCMJ provision against constitutional attack, with testmony, exhibits, etc., should a serviceman be charged with the offense in question AND the death penalty be sought.
b,
I don't know if I "often" misjudge Orin, but maybe he thinks I do. I don't think I have a "history" with him. Maybe he thinks we do. I probably have a reputation of intense dislike/distrust of the Court, which maybe Orin takes personally. That said, I think you're making a very fair comment here on our conversation. But I don't expect it to get anywhere.
I think I see the source of your confusion. You seem to imagine me as an intuitive defender of the court's work, and of the court as an institution. Thus, you imagine that I am somehow personally offended by your critique, sort of like a Red Sox fan might be upset by someone insulting the Red Sox. (I assume you imagine that because I was a clerk for Kennedy? Not sure, just a guess.) You then respond to me as if I'm taking a knee jerk defense of the court. I think you might benefit from looking with fresh set of eyes at whether that assumption is correct.
b,
Your long comment expressing puzzlement over my comment unfortunately skips over the end of it, which is directly responsive to it: It makes clear that my question was indeed subject to a technical reading that would render it a very silly question, but that I had intended it in a more natural way to ask whether Dangermouse agreed with the court's actual cases in the area in light of his politics. Read as Dangermouse read it, and apparently as you read it, there is always a difference between a person's view of policy and the constitution, and the question is a pretty silly question. My apologies for the inarticulate question; that wasn't what I had in mind. As I said, i should have been more careful.
Isn't that what Dangermouse's point was all along?
Orin, I guess I am confused. If the court stikes down all laws that enforce the death penalty like that imposed in Kennedy how will a simimlar case ever get to the court again? Do you expect legislatures to pass laws they believe to be unconstitutional? Maybe every state should pass laws outlawing abortion just to see if they can create an "evolving standard"? Or was that the penumbra? Wow, they make up so much bs it is hard to keep track of.
You are correct - the government would be able to defend the UCMJ provision by charging a defendant under the statute. In the same mode, the states other than Louisiana who have statutes providing for capital punishment for child rapists also would be able to put on a defense of their statutes. Under Kennedy v Louisana, the defendant in military or civilian courts would argue that the capital punishment is a void sentence under the constitution. The trial court likely would rule in the defendant's favor, but if not, an interlocutory appeal may well commence. Even if the government were to win the appeal and obtain a conviction that itself survives direct appeal, it would then have to survive collateral attacks on the sentence. I would be shocked if a federal district court or court of appeals would find the state statute or UCMJ provision constitutional under Kennedy. It's not impossible, but it would be shocking.
Along these lines, states are free to pass as many anti-abortion statutes as they wish. As we have seen, the courts will strike them down every time. I'm not advocating in favor of Roe and Casey, just making a practical point: once the Supreme Court rules that a particular kind of statute is forbidden by the constitution, there is an automatic and strong presumption that all such statutes are forbidden. Sure, different jurisdictions can make policy arguments to support their laws, and maybe the military would have a stronger argument because of the policy reasons you raise, and maybe the military could make the argument even stronger if the law was altered to authorize capital punishment for child rape only if the offense occurs in a war zone overseas and a firearm or other dangerous weapon was used in the act's commission, but the presumption of unconstitutionality nevertheless would apply and the military would face a very high hurdle in overcoming it.
My main point all along has been simple: because there is a presumption that the Court's ruling encompasses all analogous statutes in the land, and in light of the unique fact here that we now know that the Court was ignorant of the UCMJ provision when it rendered its decision, a great confusion has been created - are we to assume that the ordinary presumption applies, or are we to assume that the Court's factual mistake means that the decision does not apply to the neglected statute? I think it a matter of basic principle that the Court should reissue the decision to make it plain whether the UCMJ provision is included in the ban because a Supreme Court decision - no matter how erroneous the decision may have been - should not be tainted by well-known factual errors (that sort of thing undermines the integrity of the judiciary, and that is much more important than the relatively simple question of capital punishment for child rape); moreover, a re-issue is warranted under the principle of judicial economy - here, the Court's well-known mistake may give rise to added, and unnecessary, judicial proceedings. Now, it may be that the added proceedings would be important because of the sui generis nature of the UCMJ - if so, then the Court could make that equally plain in a simple footnote.
In short, whatever the outcome as regards the UCMJ, the Court should correct its factual error either by (1) expressly incorporating the UCMJ provision into the general ban; (2) expressly carving out a caveat for the UCMJ; or (3) making it plain that the decision does not control the UCMJ provision one way or the other, and thus make it plain that the lower courts should address the UCMJ provision de novo.