Final Rehearing Brief in Kennedy

The last brief is in on the question of whether Kennedy v. Louisiana should be reheard. From Louisiana's new brief:

Military law is American law. Yet the briefing to this Court continues to be marred by misstatements that demonstrate an inattention to military law.... The federal government can punish child rapists only in limited situations, so it is hardly surprising that Congress has not enacted a general law on the matter. However, when Congress does act—and in the uniquely federal realm of military law—such action presents compelling objective indicia, particularly when coupled with recent State enactments.... In the rare instances when modern military law employs noncivilian rules, a unique military interest is at stake. For example, in Parker v. Levy, the issue of disobeying command orders justified special punishment. 417 U.S. 733, 737 (1974). There is no similar argument about child rape, and military courts have drawn no such distinction with adult rape.

The Louisiana brief is full of overstatements and fails to offer any middle ground. That is not surprising for a partisan brief. However, I think the state does its arguments a disservice by being so strident and ignoring weaknesses in its arguments. For example, the argument that "[t]he federal government can punish child rapists only in limited situations, so it is hardly surprising that Congress has not enacted a general law on the matter" goes nowhere. After all, if there are few situations for federal government punishment, there are even fewer situations for punishment in the military context. Yet, apparently Congress acted to change military law and not civilian law. The brief is full of similar distinctions which fall apart the moment they are drawn. In contrast, at least the S.G.'s brief attempts to provide coherent and cogent arguments. Ultimately, I think the argument for considering military law is against past practice (Wilkerson notwithstanding). Further, rehearing to consider of the relevance of military law would require resolution of military law issues that are better adjudicated in a separate case.

Because Louisiana had already briefed most of the issues in its initial motion for rehearing, this brief offers little substantively new. Further comments and coverage of the last brief can be found at SCOTUSBlog, Sentencing Law & Policy, and How Appealing.