Supreme Court error now formally raised in new filing
The rehearing petition, citing an omission in the Court's opinion of any mention of a federal law on that issue, was filed late Monday afternoon. The petition in Kennedy v. Louisisna (07-343) can be found here.Noting that the Court "almost never grants petitions for rehearing," the state's filing said this was "the rare exception." It cited an 1875 ruling (Ambler v. Whipple), saying that an omission "material to the decision of the case" makes "a strong appeal for reargument."The petition said that either the rehearing should be granted, or the Court should "first seek the views" of the U.S. Solicitor General. Earlier, after the discovery of the omitted statute from the Court's opinion, the Solicitor General's office said that, if a rehearing plea were filed, it would examine it and "consider what steps are appropriate."Under the Court's rules, a rehearing petition 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." The other side in a case is not allowed to file a response, unless the Court specifically asks it to do so. The Court's rules add that, unless there are "extraordinary circumstances," rehearing will not be granted unless a response is first requested.
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
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.