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July 02, 2008
Supreme Court's Embarrassing Error (updated)
Clarice Feldman
A blogger, Caaflog, caught Justice Kennedy having made the biggest error in modern Supreme Court history that I can recall. In the death penalty child rape case, when he said that the death penalty for this crime was "against evolving standards" he overlooked, what a blogger found, that in 2006 Congress itself had made rape of a child a crime subject to the death penalty under the military code.
No clerk or justice caught this error which is significant and completely undermines the justification for Kennedy's swing vote in this case.Indeed, the entire case it seems to me is of dubious precedential value having been based on a clear factual error of great significance.
How can something be against "evolving standards" when Congress elected by the people of the land just endorsed it?
Hat tips: Just One Minute, Patterico
Update:
I suppose not a single clerk has any military experience or even thought to look up military law. (Outside of that, Congress does not set criminal penalties for such crimes.)
There should be grounds for the state to request reconsideration. A quick look at the SCOTUS rules reveals a motion for reconsideration is available.
Rule 44. Rehearing - 1. Any petition for the rehearing of any judgment or decision of the Court on the merits shall be filed within 25 days after entry of the judgment or decision, unless the Court or a Justice shortens or extends the time. The petitioner shall file 40 copies of the rehearing petition and shall pay the filing fee prescribed by Rule 38(b), except that a petitioner proceeding in forma pauperis under Rule 39, including an inmate of an institution, shall file the number of copies required for a petition by such a person under Rule 12.2. The petition shall state its grounds briefly and distinctly and shall be served as required by Rule 29. The petition shall be presented together with certification of counsel (or of a party unrepresented by counsel) that it is presented in good faith and not for delay; one copy of the certificate shall bear the signature of counsel (or of a party unrepresented by counsel). A copy of the certificate shall follow and be attached to each copy of the petition. A petition for rehearing is not subject to oral argument and will not be granted except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision.
- 2. Any petition for the rehearing of an order denying a petition for a writ of certiorari or extraordinary writ shall be filed within 25 days after the date of the order of denial and shall comply with all the form and filing requirements of paragraph 1 of this Rule, including the payment of the filing fee if required, but its grounds shall be limited to intervening circumstances of a substantial or controlling effect or to other substantial grounds not previously presented. The petition shall be presented together with certification of counsel (or of a party unrepresented by counsel) that it is restricted to the grounds specified in this paragraph and that it is presented in good faith and not for delay; one copy of the certificate shall bear the signature of counsel (or of a party unrepresented by counsel). The certificate shall be bound with each copy of the petition. The Clerk will not file a petition without a certificate. The petition is not subject to oral argument.
- 3. The Clerk will not file any response to a petition for rehearing unless the Court requests a response. In the absence of extraordinary circumstances, the Court will not grant a petition for rehearing without first requesting a response.
- 4. The Clerk will not file consecutive petitions and petitions that are out of time under this Rule.
- 5. The Clerk will not file any brief for an amicus curiae in support of, or in opposition to, a petition for rehearing.
- 6. If the Clerk determines that a petition for rehearing submitted timely and in good faith is in a form that does not comply with this Rule or with Rule 33 or Rule 34, the Clerk will return it with a letter indicating the deficiency. A corrected petition for rehearing submitted in accordance with Rule 29.2 no more than 15 days after the date of the Clerk's letter will be deemed timely.
Because the deadline (Jul 20) falls on a Sunday, the state has until July 21 to file a motion for reconsideration.
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Comments
I'm not legally competent but this seems to have the significance to overturn or negate this ruling . It will of course be waved off as trivial and not relevant to the decision . But what is apparent even to the untrained is the conflicting view of the authority of Congress.
Posted by: WRJonas | July 2, 2008 01:14 PM
Wow! Good work!
I imagine motions for reconsideration in the SCOTUS have been filed many times in the past.
Questions:
1) how many of those times did the court grant the motion and reverse an opinion?
2) do any of those times involve a factual error that undermines the basis of an opinion?
3) if upon filing the motion, and the motion is denied, or does not result in a reversal of opinion, then does this itself not require an opinion justifying the denial (or refusal to reverse)?
4) are there rules for judicial conduct that require opinions to be in concert with facts?
5) have judges been removed from a case (or the bench) for refusing to render judgment consistent with fact?
6) can a minority of SCOTUS justices impose judicial misconduct sanctions on one or more of the others?
I think LA should file the motion regardless of the answers to these questions.
Suggestion: If a reversal of opinion is refused by the 5, then perhaps the 4 dissenters should recommend via opinion that LA ignore the clearly erroneous majority ruling, setting up a possible fight over who to impeach for an opinion (for the first time ever) - justices who seek to break the rules, or those who seek to uphold them, and are forced to recommend breaking rules as their only legal option to restore judicial conduct.
Observation: In fact, this error could be quite the blessing, if the 4 dissenters have the guts to take advantage of the error.
Conclusion: Correcting the crap we get from the SCOTUS requires thinking outside the box. Are we going to hold their feet to the fire to uphold the Constitution, or not?
Posted by: james | July 2, 2008 01:36 PM
I will send $20 to the lawyer to refile. $20.00 What's the address?
Posted by: Houston | July 2, 2008 01:50 PM
Sure, it was a mistake. Yeah, right. Anthony Kennedy is known for searching internationally for excuses to ignore the clear language of the Constitution, and he has an unequaled talent for ignoring anything that does not conform to the secret reality that he has constructed in his mind. "Evolving standards of decency" means whatever this little angel has decided we all must do now. Is't he special?
Posted by: doctorfixit | July 2, 2008 02:05 PM
EVOLVING STANDARDS... The reason we have our Constitution is not to be ruled day by day or year by year evolving standards but by our CONSTITUTION otherwise why have our Constitution.
Posted by: Augustus Hoffman | July 2, 2008 02:25 PM
Who says that someone sitting at home in front of his computer in his pajamas can't change the world?
God Bless America.
Posted by: Ron Kean | July 2, 2008 03:03 PM
Houston, the petitioner was the State of Louisiana. PPerhaps you mgiht remind Governor Jindal to get his Atty General to file the motion.
Posted by: clarice feldman | July 2, 2008 03:41 PM
The 'evolving standards/decency of society' are "nothing more than whatever the current causes célèbre are in today's academia. The primary function of judicial opinions explaining these decisions is to deny or conceal this fact." - Constitutional Law Professor Lino Graglia
Posted by: sedonaman | July 2, 2008 04:23 PM
Jabba The Hut Was A Liberal:
Think about it: Jabba The Hut ate what he wanted, smoked what he wanted, injected what he wanted, screwed what he wanted, and flaunted what he wanted. His only discipline was to preclude or resist all attempts by others to discipline him. He respected no lines, no boundaries, and no rules. For him, law was something to meet his evolving standards. He was a law unto himself. He was the ultimate liberal. So, how is Justice Kennedy and his liberal clan any different from Jabba The Hut?
Posted by: Dlanor | July 2, 2008 09:24 PM
This news is no importance to Justice Kennedy. After all, he's now a living god and, therefore, no longer accountable to mere mortals.
Posted by: MarkJ | July 2, 2008 10:41 PM
Wanna bet Rule 44 will find itself the latest victim of evolving standards?
Posted by: George S | July 2, 2008 10:49 PM
A billion dollars to the person who can create a software program with code to decipher what is constitutional. Imagine typing "Rape of a child, death penalty", and the computer spitting out "Go for it! It's Constitutional!" That way we could eliminate the SCOTUS all together. I would trust a computer more than I would trust these partisan hacks. We only have 4 out of 9 SCJ's who are interested in upholding the law of the land. How in the hell did this happen??
Posted by: Emerson | July 2, 2008 10:55 PM
It is clear to more and more people that "government" has no qualms about abusing any single thing written into the "Law". People can be ordered to remove your legal firearms in a disaster at the same time you are without police support. Supreme Court justices can ignore whatever they choose. Black and white law is becoming meaningless as the left staffs quasi-judicial organizations and interprets their powers as they see fit. Government MUST be watched constantly. Cam badge for all of 'em!
Posted by: SenatorMark4 | July 3, 2008 09:54 AM
Anyone have a link to the 1996 Congressional law?
Posted by: MitchW | July 3, 2008 09:56 AM
The Military is allowed to have quite a few crimes defined and punished in a different manner than the rest of the United States. Some are quite ridiculous.
For example, if a married man and woman participate in oral sex at their home in private it is a crime punishable by up to 5 years of confinement. (No Joke ... the law covers all sex that is not 'missionary position' ... and it IS charged ... and there are people convicted of such in the Military each year.
Another example ... the Military can toss you in jail for not showing up for work ... Congress approved that law for the Military, but I doubt if that means they want the States to pass laws that imprison people for being late.
The Military has always claimed a 'special need' for laws that cover it to be different than laws that cover civilians and almost every case ever argued to the SCOTUS protesting the way Military law works has been defended by the US Government claiming that the Military is a special case and needs to have laws that are fundamentally different than civilian law.
So even if the SCOTUS re-exams the recent DP decision, there are many many previous SCOTUS rulings that say the Military Law is different from Civilian law and that the two need not be and should not be equated.
Posted by: James Allen | July 3, 2008 11:43 AM