More on the Overlooked Military Law in Kennedy v. Louisiana:
My co-blogger Jonathan blogs below about the fact that the briefs and opinions in Kennedy v. Louisiana overlooked the military law permitting capital punishment for child rape in courts martial. It's an interesting situation, and I wanted to blog about it.

  The first question is, who is responsible for overlooking the law? I would think that the first error here (and probably most important) was at the Solicitor General's Office. The SG's Office did not file a brief in Kennedy, and I assume they did not file anything because they didn't realize that there was a federal law to defend. Had they realized there was a federal law to defend, they presumably would have filed a brief pointing it out and defending it. That's their job. [UPDATE: See this article in the Times today for more.]

  With no filing from the SG in the case, it's not very surprising that no one spotted the military law that the SG's Office apparently overlooked. No one — not the parties, not the Justices, not the clerks, not the press, not the blogosphere in the run-up to the decision — looked carefully to see if the SG had overlooked something. So both Justice Kennedy's majority opinion and Justice Alito's dissent are based on the assumption that the six state laws were the only game in town.

  The second question is, how much of a big deal is this? I tend to think it's not such a big deal. The reason is twofold. First, I don't recall military law that applies to court martials by Article I courts being relied upon in past Eighth Amendment cases to determine the scope of evolving standards of decency. My impression is that when the courts look at the law of various jurisdictions to determine "evolving standards of decency," they look to the criminal law that applies in general courts for cases involving civilians, not the Uniform Code of Military Justice that applies in Article I courts involving those in the military. The Eighth Amendment applies in court martial proceedings, to be clear, but it's not clear that the law of courts martial is part of the evolving standards "head count." So while it is technically correct that Congress did authorize the death penalty for child rape, it did not do so in the area that has mattered in past Eighth Amendment cases: criminal law applied in civilian courts.

  Second, the evolving standards inquiry is only part of the doctrinal picture. The Court supplements that with its own independent "judgment." Obviously the latter would not be changed by the knowledge of the military law. Given these two points, I think it is extremely unlikely that the outcome of the case would have been different if the military law had been recognized.

  The final question is, what will happen now? I doubt anything will happen. For the reasons discussed above, I doubt the Justices will see this discovery as such a big deal. It's possible that there could be a slightly amended opinion, but I think it's probably more likely that they'll just let the opinion stay "as is" given that the law was a military law rather than a law that applied to civilians of the sort normally included in the "evolving standards" analysis.

  Anyway, that's my best sense of things. It won't persuade commenter "Dangermouse," who seems to think Justice Kennedy is personally responsible for everything bad in America, but that's my best sense.