Court Modifies Kennedy Decision

From SCOTUSBlog, the Court has modified both the majority and dissenting opinions in Kennedy v. Louisiana by adding footnotes to each opinion. The modifications can be seen here in the modified opinion. Footnote * of the majority opinion now reads:

When issued and announced on June 25, 2008, the Court’s decision neither noted nor discussed the military penalty for rape under the Uniform Code of Military Justice. See 10 U. S. C. §§856, 920; Manual for Courts-Martial, United States, Part IV, ¶45.f(1) (2008). In a petition for rehearing respondent argues that the military penalty bears on our consideration of the question in this case. For the reasons set forth in the statement respecting the denial of rehearing, post, p. ___, we find that the military penalty does not affect our reasoning or conclusions.

Footnote 6 of the dissenting opinion now reads:

Moreover, as noted in the petition for rehearing, the Uniform Code of Military Justice permits such a sentence. See 10 U. S. C. §856; Manual for Courts-Martial, United States, Part II, Ch. X, Rule 1004(c)(9) (2008); id., Part IV, ¶45.f(1).

As I've previously made clear, I think the decision to not rehear the case was the right one. Footnote * refers to a statement regarding a denial of rehearing. I haven't seen that statement yet, but hopefully it explains the Court's arguments for not rehearing in greater detail. Otherwise, all the briefing by the parties and the S.G. seems for naught. I will post the statement regarding rehearing here as soon as its available.

Update: Here is Justice Scalia's statement on rehearing. It is a bit interesting that Scalia authored this statement given that Justice Alito wrote the dissenting opinion. Only Justice Roberts joined Scalia on the rehearing statement. Justices Alito and Thomas would grant rehearing, but as I read it, they didn't join Scalia's statement. And here is the statement from the majority about rehearing. The statement also outlines the modifications made to the opinions (with an additional minor modification to the dissent). Here is a key portion of the majority's statement (which I think is exactly right):

In any event, authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context. The military death penalty for rape was in effect before the decisions in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam), and Coker v. Georgia, 433 U. S. 584 (1977); and when the Court surveyed state and federal law in Coker, it made no mention of the military penalty. See id., at 595–596, 593, and n. 6 (plurality opinion) (not including the military as a “jurisdiction in the United States” that authorized the death penalty for rape, and naming the Federal Government among jurisdictions that recognized the death penalty for rape prior to Furman but citing only the nonmilitary provision). The same is true of more recent Eighth Amendment cases in the civilian context. See Enmund v. Florida, 458 U. S. 782, 789–793 (1982); Tison v. Arizona, 481 U. S. 137, 152–154 (1987).

Comments

[Zack]

Professor Yung, I find it interesting that Justice Scalia so blithely dismissed the concern about the potential danger that rape by members of the military could pose to the military as a justification for why military law does not matter in the civilian context. While Justice Kennedy did not elaborate, I think that the majority's distinction between military and civilian law is exactly right and supported by historical evidence (an example I can think of right off the top of my head is the problems the military were having in Okinawa due to soldiers raping Japanese civilians - it created a lot of tension between the governments of the United States and Japan - and of course, rape by soldiers can rise to the level of being a crime against humanity under international law as happened in the former Yugoslavia and Rwanda where soldiers systematically raped civilian women). Given the danger that rape by soldiers overseas can pose to other soldiers, it does seem to have the potenial to be like treason by a member of the armed forces.

[rn]

Scalia's argument about the 2006 military law reflected Congress's and the President's judgment regarding the death penalty is also ridiculous. Is there any evidence, of any sort, that any member of Congress discussed or even contemplated this tiny section in a massive bill? The fact that no one was even aware of this provision until after the Kennedy decision was issued speaks volumes about its significance.

[Daniel]

While this is the correct resolution, I think it still is a impressive accomplishment for one little blogger in the middle of nowhere. He didn't change the world, but he certainly got the legal community's attention. Fifteen years ago I doubt anyone would have even noticed what one guy thought about the application of an esoteric area of law to the death penalty.

The Internet has changed things.

[bfgbx]

CAAFlog is not a "little blogger" however. There are some familiar names on that blog and all are mil-law practitioners.

[Chris]

"Justices Alito and Thomas would grant rehearing, but as I read it, they didn't join Scalia's statement."

That's because Scalia and Roberts voted against rehearing: "I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority's decision in this case."

[Corey Rayburn Yung]

Chris,

You are right, of course (and I probably should have made that clearer in my quick summary). I just found it odd that they either 1) didn't join in part of Scalia's analysis and not the outcome; or 2) write separately. Based upon the requests for more briefing, I just expected a more pronounced defense of rehearing the case from at least one of the Justices. I also found it strange that Scalia decided to attack the bean-counting evolving standards of decency approach so fervently when he didn't write separately in the original set of opinions.

Best,

CRY

[David Nieporent]

Professor Yung, I find it interesting that Justice Scalia so blithely dismissed the concern about the potential danger that rape by members of the military could pose to the military as a justification for why military law does not matter in the civilian context.

Zack, you present a policy argument why there's a justification for treating them differently. Nothing you say has any bearing on whether it's "cruel and unusual" -- the majority's claim -- in one situation and not another.

[Daniel]

David. I find your comment odd. The definition of what is cruel and unusual is contextual by nature. I am not a military law expert by any means but is appears well established that military law is fundamentally different than civilian law precisely because the contextual situations are so different. If my understanding is correct, the question would then become why is military law relevant (as opposed to why is military law irrelevant).

[Corey Rayburn Yung]

David,

I think Daniel is essentially correct in his reply. Because the Court has decided to use the bean-counting evolving standards of decency approach to what is "cruel and unusual," the question is what "beans" count? So, deciding if the military "bean" is similarly situated was the only issue on rehearing. That's why I found the Scalia statement kind of odd. He chose not to write separately when the original opinion was issued, but decided to lambast the evolving standards approach even though it wasn't the question before the Court upon rehearing. I agree with Scalia and others that the bean counting approach is horrible. Unfortunately, no one (including the dissent) seems to offer a viable alternative. References to originalism are disingenuous because no one on the Court seems to want an originalist view of the 8th Amendment. It was actually Scalia's failure to embrace originalism under the 8th Amendment that led to the criticism that his originalism was "faint-hearted." I think the majority opinion in Kennedy was exactly write in applying prior methodology. However, I think the methodology the Court uses in these cases is just horrible. But, for now, it is the best option available.

Best,

CRY