Supreme Court Modifies Kennedy v. Lousiana:
The Court's amendments are here, together with a statement respecting the denial of reconsideration. The modified opinion is here. Only two Justices voted for rehearing, Alito and Thomas. Justice Scalia's opinion concerning the denial of rehearing (joined by Chief Justice Roberts) is here, and includes the following:
I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case.The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Ante, at ___ (slip op., at 24). Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.This is pretty much what I thought would happen: Certainly no surprises here. Thanks to Corey Yung for the links: Corey has additional commentary here.
So what that gang of five said is that the military is made up of sub humans who can be killed out of hand unlike important people like their own families.
we won't know that until someone has standing to challenge the military law.
I mean, if you are going to impose a policy on us against our will, why not a better one than this?
On the other hand, Scalia’s point later on says that he can’t imagine how rape by a soldier would be considered worse than by a civilian. In that I find myself persuaded by commenters here who say, look, our soldiers are ambassadors to the world, they are stationed all over the world and thus their rapes are worse in that respect. For instance, much of the push to get us out of Okinawa is driven by, if memory serves, around 2 rapes by marines. That is arguably worse than a mere civilian rape. And also in general any kind of law breaking by a public official can be seen as worse, because of the threat that official power might try to cover it up; or perhaps people will wrongly think that the government will cover for them and they will need extra deterrent to make sure they understand they will not get away with this. And finally, bluntly, there are certain people who think our military is uniquely prone to rape, requiring further deterrence. Its an unfair stereotype, but it exists.
That the Manual for Courts-Martial retains the death
penalty for rape of a child or an adult when committed by
a member of the military does not draw into question our
conclusions that there is a consensus against the death
penalty for the crime in the civilian context and that the
penalty here is unconstitutional. The laws of the separate
States, which have responsibility for the administration of
the criminal law for their civilian populations, are entitled to considerable weight over and above the punishments Congress and the President consider appropriate in the military context. The more relevant federal benchmark is federal criminal law that applies to civilians, and that law does not permit the death penalty for child rape. Until the petition for rehearing, none of the briefs or submissions filed by the parties or the amici in this case cited or discussed the UCMJ provisions.
This screams to me that in his mind military people are undermen, and can be punished at will.
I take it you think Boumediene is a great decision.
Much of the push to get us out of Okinawa is that it is a resort island, and each base that is handed back becomes a hotel complex with its own golf course and a license to print money.
Anti-base rallies are staffed with employees told to report and taken to the gate of the headquarters in leased busses paid for by their employers.
The rapes were chosen because the prior rally points, traffic accidents, were just not doing it in the US media. The locals only jump on a few rapes--those alleged to have been committed by black servicemen.
Japanese men commit a lot of sex crimes, but their culture sees whites as not quite at their level, and blacks way below their level, so they can point fingers at black alleged rapes without any questions being asked in their media about why they all of the sudden care.
Come on. What other conclusion can I draw?
The supremes have ruled that the government cannot be sued by servicemen for any reason, ever, even gross negligence and unsafe housing having nothing to do with military operations.
The supremes decided the court martials are so unfair and evil that persons associated with the military are not subject to them unless there is a war on, but jamming a military man with them is fine.
Doctors who cannot be licensed are free to main and kill servicemen who are ordered to go to that doctor, and they are not allowed to sue.
Capt Pederson and his staff on the USS Ranger denied a minor offender food and water and left him tied in the hot sun on a steel deck until he died, and the ninth circuit ruled that no cause of action for the torture and death could be brought.
Servicemen are condemed to a terrible death from dow chemical's agent orange, and the Supeme Court rules there is a federal common law for civvies who want to bring a mass tort, but not for servicemen.
Now this.
At a certain point it isn't paranoia, the courts really are out to harm military members.
Several Justices have military service themselves: They aren't out to harm you, I promise. Now put the gun down and back away from the ledge before someone gets hurt.
I still don't understand why the Supreme Court doesn't commission a scientifically-valid poll gauging the American public's view of whether the punishment should fit the crime.
And Justice Scalia should have written:
The proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which a majority of the Supreme Court deems unacceptable.”
Several Justices have military service themselves: They aren't out to harm you, I promise. Now put the gun down and back away from the ledge before someone gets hurt.
I am POed about this, but with good reason.
Why is it that in your mind someone who is pro-military and upset at a bad decision is going to start shooting from a ledge?
Here is a thought experiment for you. Reread the opinion with 'black' or 'jewish' in place of military. How mad are you now? Should I then make comments that you are about to be a mass murderer?
Scalia tries to make points by misstating the arguments on the other side. He says:
True. But it would not have been laughed to scorn if it had said:
Reading Article II, Article VI, and the Eighth Amendment together, this is pretty much what the Constituion says, whether Scalia finds it laughable or not.
Well yeah, isn't that the purpose and role of the military? Boot camp is designed to dehumanize soldiers (and enemies). That the country's leaders would put soldiers in harm's way for an elective goal speaks to your "killed out of hand," comment, but you'd have to be pretty naive to be unaware that it's the guys back at the command center who send the soldiers into battle. Saying that infantry is disposable is not controversial (aside from whether they should be or not). When's the last time a General was killed in action?
I am pro-military and upset with the Court's decision, too. Indeed, I am sure many readers are.
> I take it you think Boumediene is a great decision.
What exact words did I say to suggest that was the case? As a point of fact, that is a lousy one, too, policy wise and in reading the law. I am frankly outraged that the Supreme Court is so deeply solicitous of the rights of the accused, but not of the utterly innocent. The example of their hostility to any law protecting the disabled is a perfect example of that.
But perhaps what you are annoyed with is that you read it as endorsing something other than sticking with the original constitution. I have been on record her for a long time as believing that the constitution should be followed, that the justices have no right to ignore it. All I am saying is if they aren’t going to be bound by the constitution and be a super-legislature, could they at least do that well? But don’t take that as me excusing their violation of the constitution.
What makes you so sure that the accused are not entirely innocent? Every accused person is, for purposes of punishment, presumed to be innocent, and the Constitution gives the courts the right and the responsibility of separating the guilty from the innocent. If the accused don't have court hearings, how can we ever determine who are utterly innocent and who aren't?
It's hard to see the gentle ribbing when things we care greatly about are under attack. Text fails to convey the humor that can be found in a gentle smile.
--PtM
I see no reason that a State cannot pass a law deemed unconstitutional by the SCOTUS (they certainly cannot legally apply that law, but they can have it on the books).
The excerpt from Scalia's opinion makes an excellent point, though I probably disagree with his desired outcome on governmental philosophy grounds (though not moral).
Doing the right thing for the wrong reasons is still doing the right thing, David.
> What makes you so sure that the accused are not entirely innocent?
As a group, the accused is usually guilty. Even a pro-defense guy like Dershowitz will concede that 90% of all defendants are guilty. Which isn’t to say they don’t deserve the presumption of innocence, but you will pardon me if I care less about them. Further, in this particular instance we are talking about a man found guilty, where the evidence leaves virtually no room for doubt, and yet the Supreme Court is worried we are being too hard on this man by executing him. For raping his own daughter so hard that it broke the wall between her vagina and anus.
By comparison, the disabled are a group innocent, and there is certainly no reason to think that being disabled makes you more likely to have done something wrong. But in one case the Supreme Court swept away any and all potential constitutional protection. Who is more deserving of activism in their favor? The handicapped or child rapists. I don’t see how that is even a tough call.
Hoosier
I honestly appreciate your principled position.
David
> Well, Dilan, I'm sure that if he had a fifth vote, he would have voted to reconsider.
Ah, the old reduction ad hallucinogen. X is a hypocrite because you imagine if things were different, he would have gone the other way.
> But given that it would have obviously been futile, he didn't think it worth the effort, just to rant once again about how the majority was legislating from the bench.
They aren’t? Really, now.
They pretended to look into consensus, and pretended their own words had no effect on the actions of others. That is neither how it is nor how it should be. Legislators don’t usually pass futile laws, nor should they. So all the data points they pointed to for this consensus were influenced by previous Supreme Court rulings.
And that is pretending this entire consensus analysis is valid in the first place. It is not. If the founders really wanted judicial whim or consensus to be the determinant factor, then the founders would have said that.
Scipio
This is shaping up to be one of the worst courts ever.
The superior is in charge of the subordinate. The People are the superior of the Constitution and the Constitution is the superior of the Court(s). As such the court has not legitimate authority to define, interpret, or otherwise decide on what the Constitution says or means. It means what We the People say it does, but only when We the People have not been brainwashed into believing the drivel that comes from the mouths of our servants.
However, amending the contitution is a real pain. So instead, we have the one way ratchet created by the evolving standards of decency test. Which, true to its name, is making sure we evolve into a different constitution without the say so of the governed. The Kennedy decision is just the latest evolution of our brave new world. I hope you like it, because you don't have a choice.
Do you think that the Supreme Court would be willing to distinguish between the military and civilians when it comes to declaring punishments unconstitutional because they are inherently cruel as opposed to cruel due to being excessive? Could the navy reintroduce keel-hauling?
Respondent--I don't think keel-hauling is much fun now that they remove the barnacles.
So you know for a fact that if he had the votes to come up with a different outcome, that he would have voted for full reconsideration?
Lol, well, if you want to believe that... But to the rest of us, that is just speculation.
The surest recipe for irrational hatred is to criticize a person based on what you assume they would do, rather than what they actually did.
So given the comment the death penalty is unconstitutional for civvies, but totally fine for the military, for things like child rape totally unrelated to a military function?
So what that gang of five said is that the military is made up of sub humans who can be killed out of hand unlike important people like their own families.
Huh?
First off, they can't be "killed out of hand," since that term is usually used to mean a summary execution without trial.
Servicemembers are in the military 24/7, so I'd dispute "unrelated to a military function" as a meaningful term, but I'll assume it for the sake of argument.
Rape by SMs can have a big impact on perception within local communities, and the perception that there's a huge pool of federal employees committing crimes can cause problems. So this type of thing can definitely impact "military function[s]"
Furthermore, if we do have Soldiers that go off the reservation during a war, rape, murder, and looting are pretty common crimes that get committed. I don't think that it's controversial that raping kids is worse than raping adults, and the MCM provides for the death penalty for raping adults. It makes sense that you'd have an article under which to punish people who do this.
Finally, I have no problems with punishing SMs more than civilians; they need to be held to a higher standard. (full disclosure: I don't think executing civilians for rape of a child is cruel and unusual punishment, either) Everybody in the Army has an automatic weapon assigned to them--there's a certain amount of trust inherent in the system.
Part IV, Paragraph 45f(1) says that the maximum punishment for "Rape and rape of a child" is "Death or such other
punishment as a court martial may direct."
However, the analysis in appendix 23 basically says that you can't punish the rape of an adult woman with death, in accordance with Supreme Court jurisprudence, but that the question was open in regards to a minor. (this was written before the case under question, obviously)
I will say this. I think I speak for most of the people outraged by the original decision when I say all of this stuff about reconsideration was an artiface. What we really were hoping for was Kennedy or any of the other 4 justices saw how deeply unpopular the decision was and decided to overturn it. Not because of one more statute. I don't think any of us thought that this decision was anything more than undisguised fiat. Intead, I think we all hoped they would use it as a pretext, when in fact they really wanted to overturn it because they were afraid they would damage the court if they left things stand. At the very least, they might have made another go at the majority opinion and came up with something less laughably flawed.
It wasn't a very strong hope, but for those of us who believe in justice and the constitution, we had to hope.
Agreed.