What's at Stake with the Kennedy Rehearing

Peter Verniero recently had this to say:

There is something almost sacrosanct about recitations of law contained in decisions of the U.S. Supreme Court. Lower-court judges, attorneys, law professors and everyday citizens depend on those statements in myriad ways even when disagreeing with the court's conclusions.

If for no other reason than that, the court should reconsider and correct an opinion it filed at the end of its last term, Kennedy vs. Louisiana....

The court's opinion recited the law erroneously. The Uniform Code of Military Justice -- without question, a federal law -- includes sexual assault of a child among the crimes for which capital punishment is authorized. What's more, because Congress amended the code to include the child-rape provision in 2006, it cannot reasonably be said that the law reflects an outdated notion of a bygone era. Al though societal standards might evolve over time, we typically measure such evolutions over a period of several years, not months....

But how one feels about the death penalty is irrelevant to whether the high court should reconsider its Louisiana decision. At stake is not a policy debate but the reputation of the judiciary. If court decisions are to retain legitimacy in a free society, they must be based on accurate readings of the law. From that perspective, unless or until it is corrected, the Louisiana opinion will suffer under a cloud of doubt.

Berman added his thoughts about the article:

It is unclear whether the author of this op-ed would be content if the Justices just amend the Kennedy opinion by adding a footnote discussing the (lack of) impact of military law on the analysis.  I suspect that the adding of such a footnote through an amended opinion is all that the Supreme Court will ultimately do in response to Louisiana's rehearing position.  And perhaps this is all the Court should do, since the flaw of the decision does not rest in its failure to discuss military child rape law, but rather in five Justices' clear desire to use constitutional doctrine to block any expansion of the death penalty in American states.

In short, as I have explained in prior posts noted below, I consider the Kennedy decision to be misguided as a matter of constitutional law and policy.  But, unless someone in the Kennedy majority is prepared to reconsider more fundamental aspect of this recent ruling, I doubt that the military law kerfuffle should (or will) change the outcome.

I side with Berman on this one even though I'm clearly not in favor of any rehearing. I think this military omission is just not something the Court should be worried about.

Comments

[Tried By Conscience]

There's one other factor to consider. The nature of military law, and tribunals, is considerably different from civilian law, or common law. The law of Admirality, of the high seas, and the law of courts-martial cannot be equated, or instituted, as the law over the whole of society. Said law lacks a great many of the protections, and rights, which under common law ordinary citizens enjoy.

In addition, the JAG's rules are determined by the congress, not by the common law.

Intermixing two separate parts of law for a precedent in common law would be foolhardy, as this is also law which allows summary execution by a commander on the battlefield for cowardice, as well as execution for violations of the Geneva Convention.