The Magazine

Supremely Screwed Up

A do-over for the High Court?

Aug 4, 2008, Vol. 13, No. 44 • By TERRY EASTLAND
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The Supreme Court ended its term this year by making a mistake in one of its most controversial cases--the case in which it held unconstitutional a Louisiana law authorizing capital punishment for the rape of a child under 12 years of age.

Writing for a majority of five in Kennedy v. Louisiana, Justice Anthony Kennedy said that while 37 jurisdictions--36 states plus the federal government--have the death penalty, only 6, all of them states, authorize it for child rape. Kennedy cited those numbers in determining that American opinion was divided about but on balance clearly against using the death penalty to punish those who rape children. For Kennedy, the numbers were evidence of a "national consensus" against making child rape a capital crime, an affirmation that the nation's "standards of decency" have been properly "evolving."

Three days after the decision was handed down, a military reservist and lawyer who blogs on military justice issues pointed out that in fact, contrary to what the Court had said, there is a federal statute expressly authorizing capital punishment for child rape. The National Defense Authorization Act for Fiscal Year 2006 is the law, and in its revision of the sex crimes section of the Uniform Code of Military Justice it explicitly authorizes the death penalty for soldiers who commit child rape.

As it happened, not just the Kennedy majority failed to notice the existence of this federal law. So did the four dissenting justices. So did petitioner Kennedy and respondent Louisana. Moreover, none of the 10 friends of the court in the case, not even one, cited the law. Neither did the solicitor general's office, which represents the government in the Supreme Court and on which the Court counts to advise it regarding any federal interest (such as a federal statute) that might be implicated in a case in which the government is not a party. Indeed, the solicitor general didn't even file a brief in Kennedy, a failure the Justice Department now regrets: "It's true that the parties to the case missed [the statute]," a Justice spokesman said last month, "but it's our responsibility."

This remarkably complete failure to take notice of an obviously relevant federal law quickly became a topic of speculation inside Washington. But more important than why it happened is whether the Court will reconsider the case.

Last week Louisiana petitioned for a rehearing. It's a long shot: A leading authority on the Court's history reported in 2007 that the Court has granted a rehearing petition only 22 times in history. But in this case there is good reason for the Court to grant a rehearing, even one limited to the significance of the federal statute, for only through a rehearing can the Court assure the public that it has weighed all relevant information.

A rehearing would certainly present challenges to the Kennedy majority. By 1989, as a result of judicial decisions invalidating capital rape laws, no state authorized the death penalty for child rape. In 1995, however, Louisiana became the first of the six states since then to pass a capital child rape law. Kennedy minimized the significance of these legislative enactments and the prospect that there might be more of them. And, of course, he thought that only states had an interest in using the death penalty for child rape. In a rehearing, the Court would have to include the federal law in its "consensus" analysis.

Louisiana's petition points out that the change in federal law was "deliberate and premeditated." The Pentagon, in a report it prepared on sex crimes including child rape, discussed the Louisiana statute and attached it as an appendix. The legislation in which the capital child-rape provision was enacted passed both houses of Congress and was presented to the president, who signed it. It is, like all other federal laws, an expression of the nation's, and not just a state's, democratic will. And it is a plain and very recent expression. A question for the Court would be whether, in light of the federal statute, it could still believe there is, as Kennedy put it, "a national consensus against capital punishment for the crime of child rape."

That was one of the two rationales for the Court's decision. The other was the Court's "independent judgment that the death penalty is not a proportional punishment for the rape of a child." Justice Kennedy didn't say whether the majority leaned more on its view of national consensus or its own independent judgment about disproportionality. In the event of a rehearing and a revised opinion, the Court probably wouldn't want to rest its decision just on its own independent judgment, as the Court then would be saying it had been wrong about national consensus, and it would be more nakedly pitting its own moral judgment against that of an ostensibly self-governing people. That's a reason to think the Court would do all it could to maintain its national-consensus position.

If the Court finds itself in a tough place in Kennedy v. Louisiana, it's a place of its own making. The legal text the Court used to void the death penalty statute in Kennedy is, of course, the clause in the Eighth Amendment barring "cruel and unusual punishments." As originally understood, the clause contained no proportionality principle and prohibited only cruel methods of punishment that were already unusual when the amendment was added to the Constitution in 1791. As such, the clause left--and should still leave--ample room for the political branches to legislate (or ban) the death penalty as they see fit. But long ago the Court departed from the original meaning of the clause and embarked on its continuing mission to sharply constrain the use of the death penalty.

Some years ago Justice Antonin Scalia captured the essence of the problem that the Court's mission poses when he noted that "there is something to be said for popular abolition of the death penalty," but "there is nothing to be said for its incremental abolition by this Court."

Kennedy v. Louisiana is another incremental abolition, since in no previous case did the Court nullify a capital child-rape law. If there is a rehearing, perhaps the justices can tell us whether they read their own decision in Kennedy as it can only be read: as invalidating the federal statute they didn't know about.

Terry Eastland is the publisher of THE WEEKLY STANDARD.