The Justice Department, in a bold legal maneuver, on Monday afternoon asked the Supreme Court to rehear a major case on the death penalty, saying the basis of the decision had been “undermined.” The decision at issue was the 5-4 ruling on June 25 in Kennedy v. Louisiana (07-343), barring the death penalty for the crime of raping a child. The federal government was not involved in that case. Although the Court’s rules do not allow non-parties to ask that a case be reheard, the Solicitor General’s office filed a motion asking permission to do so, arguing that the Court should grant the state of Louisiana’s plea for rehearing. The motion can be found here.
“The United States,” Acting Solicitor General Gregory G. Garre argued in the motion, “has a substantial interest in rehearing because the Court’s decision casts grave doubt on the validity of a recent Act of Congress and Executive Order of the President authorizing capital punishment for child rapists under the Uniform Code of Military Justice”– the law that governs crimes committed by those in military service.
As with Louisiana's brief, I find a few important things missing from the SG's brief. There is no citation to show that the Court has ever considered the military in evaluating evolving standards of decency. This omission is not because the military had no conflicting provisions. As I've noted before, at the time of Coker, the military had the death penalty for rape. And since Coker, the UCMJ has not been amended to remove that provision. Relatedly, there is no citation that the 8th Amendment even applies to persons sentenced under the UCMJ (at least in the same way it applies to other persons). Persons subject to military jurisdiction have substantially less rights at many stages of the criminal justice process. Including the recent amendment to the UCMJ in evaluating evolving standards of decency cannot be supported by any prior case law. And it certainly cannot support the highly unusual grant of a rehearing. But don't tell that to the Weekly Standard.