NYT:
In a highly unusual admission of error, the Justice Department acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact while the justices were considering whether death was a constitutional punishment for the crime…Justice Kennedy’s conclusion about the absence of federal law was mistaken.
Surely there is reason to require the Justice Department to apprise the Supreme Court of relevant facts concerning existing laws when this information in relevant to a case. But does the Court always treat paradigm sources of expertise as the exclusive avenue through which they acquire knowledge of this sort? I find it hard to believe that not one amicus brief mentioned this, or that no clerk of Kennedy’s should have known the same thing the Justice Department should have known, especially since one crux of Kennedy’s argument reportedly was that since “child rape was a capital offense in only six states, and not under federal law, the death penalty for the crime did not meet the ‘evolving standards of decency’ by which the court judges capital punishment.” It’s just strange to me that this is being billed as a “Justice Department Fucks Up” story. But maybe there are elements of Supreme Court jurisprudence that supports framing the story that way.
And speaking of strangeness, on a strict reading of the Bill of rights, would any punishment be unconstitutional if it were unusual? The Eighth Amendment says “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” One might argue that the use of a copula entails that unusualness on its own would not sufficient for unconstitutionality; you’d have to have cruelty and unusualness. But it could be argued that this is the wrong way to read the copula. It could be used to express the dicta that no cruel punishments shall be inflicted and that no unusual punishments shall be inflicted. Or, if you didn’t go that route, you could argue that surely it would be sufficient to prove unconstitutionality that the punishment is cruel; it is no defense of a heinous form of punishment that it’s popular. And then if you allow cruelty to be determinative on its own, you should allow unusualness as well.
Basically I’m just talking out my ass. And I don’t care much for literalist interpretations of the Constitution anyway. So I can rest easy, not least because musings such as these are no longer unusual punishment for y’all.
John | 03-Jul-08 at 3:16 pm | Permalink
good analysis. i’ll defer to you on all things copula. i too noticed this lede today and thought it was a bit odd. although it’s the litigants’ responsibility to present to the court authority that supports and detracts from their respective positions, it does seem like a bit of a stretch to put the blame almost exclusively on the shoulders of the Justice Dept.
DC | 03-Jul-08 at 7:50 pm | Permalink
Christ, I read the whole post and not a single copulation joke? I want my money back.
And what about the possibility that the cruel must by definition be unusual, and/or vice versa?
Chris | 03-Jul-08 at 8:49 pm | Permalink
DC, I think that social intercourse between people would become impossible if we were always looking, childishly, for double meanings where there are none. I see no need to erect silly theories about how Paul’s comments could have been misread. Forgive this ejaculation on my part; you’ve touched a nerve.
I don’t think it will ever be part of the definition of what is cruel that it is unusual.
upyernoz | 04-Jul-08 at 9:35 am | Permalink
remember, the parties submitting the briefs didn’t know what justice Kennedy’s opinion would be. they didn’t know that the courts decision would ultimately rest on the number of jurisdictions with the death penalty in those circumstances. I’m not sure which brief kennedy kribbed his 6 states plus no fed statistic, but it may be the DOJ’s brief was the only one to bring it up in their argument. you can’t ble the other parties, whose arguments might not have hinged on that stat, for not mentioning it in their brief.
by the way, supreme court justices have clerks who are supposed to check the cites that appear in the briefs. I think the problem here might be the problem of proving the negative–they could check and confirm the cite of each state’s law about the death penalty, but it probably just never occurred to any of them to check the jurisdictions that weren’t cited
the bottom line is that everyone makes mistakes, even the best of the best clerks in the country. this has probably happened a bunch of times before. the problem only came out this time because of a blogger.
Paul | 04-Jul-08 at 10:28 am | Permalink
I’m not saying that any particular brief author should have included this information. I just find it hard to believe that it wasn’t included. I also find it hard to believe that the lawyers on the pro-death penalty side didn’t have this information and recoil in horror when they saw the falsehood acting as the keystone of the Justice’s argument.
And the “difficult to prove a negative” argument seems a bit thin here, as we are talking about legislation that’s in the public record, not a vial of mustard gas that might or might not have been in Iraq and moved to Syria, or whatever. If a clerk approached DOJ to inquire about extant legislation because Kennedy’s argument hinged on that, and DOJ gave them false information, then clearly DOJ is to blame (as they are if they submitted a mistaken brief). But that doesn’t mean that only DOJ is to blame–or, it doesn’t mean that if clerks are permitted to look elsewhere for confirmation of crucial facts about legislation. Are they not allowed to contact whatever research room of the House a page visits several time on a daily basis?
Of course everyone makes mistakes–even Chris! But that leaves room for the rest of us to ask what happened, and whether it should have happened.
Spaz | 04-Jul-08 at 10:47 am | Permalink
This seems rather improbable to me; and if the article is accurate then the Justice Department should be culpable. It is hard to believe that Justice lawyers (though perhaps not litigators) were not involved in some aspect of the bill in question. Perhaps I’m wrong and it was only military lawyers involved, but regardless, if Congress has passed a law on child rape and you’re litigating a case on child rape at the USSC….????
I can’t see things in the US being THAT different from here in Canada. Pleadings on contentious points of law that differ between sub-federal jurisdictions ALWAYS require thorough examination of those differences. Granted in Canada we only have 10 provinces, 3 territories and the federal jurisdiction (which includes military), but all would be canvassed by the court and anything useful would be pleaded by the litigants. It’s frankly inconceivable that either litigant, interveners, clerks, or the judges themselves did not know this…presumably all the judges read the decision before it was finalized, in particular the dissenting judges.
The Justice Department deserves the blame, but frankly everyone involved should be embarrassed, in particular the Judges.
Chris | 04-Jul-08 at 1:47 pm | Permalink
I make mistakes? What the hell are you talking about?
Paul | 04-Jul-08 at 1:55 pm | Permalink
I’m just tellin’ like it is, Man. Tellin’ it like it is.
Spaz | 04-Jul-08 at 2:40 pm | Permalink
Of course you make mistakes…remember that time you were fasting for 36 hours for some high school charity event, but on learning you could drink water and juices started to drink apple juice with reckless abandon…not realizing it was a natural and powerful diuretic…remember THAT mistake, you made. Remember.
Chris | 04-Jul-08 at 4:12 pm | Permalink
How do you know I didn’t just want a painful cleansing experience?
Spaz | 04-Jul-08 at 4:56 pm | Permalink
By the look of surprised pain bordering on horror you had on your face…and your bounding sprints up the stairs to the bathroom.
Anonymous | 04-Jul-08 at 5:09 pm | Permalink
And the “difficult to prove a negative†argument seems a bit thin here, as we are talking about legislation that’s in the public record
except that there’s a whole lot of different jurisdictions in this country to check. there’s the 50 states and the federal law. except that the “federal law” is really a collection of a whole lot of different bodies of law (e.g. the law of D.C., the various territories like puerto rico, the general federal law that overlaps with the states, and the military code of justice). i practice law and almost never think of most of those different federal jurisdictions. it would be quite easy for me to forget the USCMJ because i’ve never had any dealings with it.
so i imagine justice kennedy’s clerk, reading a brief that says: “The death penalty is only permitted in these circumstances in six states, and not under federal law.” that would be followed by a cite to the law of the six states and then also a cite to the federal code listing capital offenses. so the clerk would check the cite for each of the states, and then check the u.s. code cite. and they all would be accurate. it probably would never occur to him/her to check to see if there was another u.s. code provision out there somewhere, that said that for u.s. service personnel, child rape is a capital offense.
that’s what i mean by “prove the negative.” it’s not that this stuff is hidden. it’s just that if you see a federal statute that says it’s not a basis for the death penalty, i lot of lawyers would feel safe saying that federal law bars the death penalty for child rape that isn’t also a murder. of course, you could look longer to see if there is another slice of federal law that says otherwise. but unless it actually occurs to you to look specifically at the USCMJ, you might not find it. and when you’ve already found the general federal statute saying death penalty for killings only, there wouldn’t be any reason to keep looking to find out what federal law is.
so i completely understand the mistake.
upyernoz | 04-Jul-08 at 6:51 pm | Permalink
that anonymous person was me
sorry
Paul | 04-Jul-08 at 11:04 pm | Permalink
Fair enough. You’re a professional in this general field, and I’m happy taking your word for it that the mistake is understandable.
I’m still surprised that none of the briefs mentioned this. And if they did, is it then OK to assign a bit of blame to the clerks? Or are they so overwhelmed with data that they can’t possibly be expected to wade through it all? (That’s a genuine question.)