Monday, July 28, 2008

Acting SG joins Louisiana in seeking rehearing of Kennedy decision

The Acting Solicitor General today asked the Supreme Court to reconsider its opinion in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008). Here's a link to the Motion for Leave to File Brief and Brief for the United States as Amicus Curiae Supporting Petition for Rehearing. And here's a link to SCOTUSblog's discussion of the Acting SG's move.

As was the case with Louisiana's rehearing petition, military law plays a prominent role in the Acting SG's filing. It uses the National Defense Authorization Act for Fiscal Year 2006 for both procedural and substantive purposes. First, the Acting SG argues that because Kennedy endangers the constitutionality of that act's authorization of the death penalty for child rape, it justifies the extraordinary step of allowing the United States to support a rehearing petition in a case in which the United States didn't originally participate. Second, the Acting SG uses the NDAA substantively to argue that it and President Bush's implementation of the NDAA in his 2007 MCM amendments undercut the Supremes' finding of a national consensus against imposition of the death penalty for child rape.

5 comments:

Anonymous said...

Does this help or hurt military law? The Supreme's prior silence could have been taken to mean that the military's death penalty was untouched by the holding in KENNEDY due to the special circumstances of military law, leaving it in place for the procedural value it imparts by considering the offense capital (with a low likelihood of it ever being actually enforced). By facing the question directly, there is now a chance that SCOTUS will directly strike-down the UCMJ punishment as well.

Publius said...
This comment has been removed by the author.
Phil Cave said...

Does the legislative history indicate Congress discussed any of this when it "continued" the military death penalty. Or was this just a signing moment? Is it important whether or not Congress actually paid attention and came to discrete conclusions?

Norbert Basil MacLean III said...

Phil Cave, there were no hearings either in the House or Senate Armed Services Committees when Congress incorporated the child-rape provision in the National Defense Authorization Act for FY 2006. Additionally, there was no debate on either the House or Senate floor. Also I haven't been able to find any Congressional Research Service paper on the issue. It would be appear that DoD GC proposed it to Congress in their annual proposals and then it was log-rolled into the NDAA without any hearing or debate. Also, the President never issued a signing statement on it as well (This President in particular has been famous for his signing statements as he has issued more than any other of the presidents combined.) The majority opinion in Kennedy seems to hinge on an "evolving standards of decency." I cannot see how the Supreme Court could rely upon this particular military statute as an evolving standards of decency and then apply it to the public at large especially given the fact that there were no hearings or debate in Congress. The Congressional record is void on this.

Cully Stimson said...

The SG's Motion for Leave to File Brief and supporting Brief Supporting the Petition for Rehearing ups the ante in this case, and makes it slightly more difficult for the Court not to rehear the case. That assumes, however, that all four of the dissenters AND Kennedy vote to rehear the case. Kennedy may not want to revisit his majority opinion. The SG's brief is hard hitting and direct. According to the brief---and I think this is correct---the decision "casts grave doubt on the validity" of the death penalty for child rapists under UCMJ Art. 120, and the President's Executive Order. In other words, it calls into question the constitutionality of the death penalty for child rapists under the existing UCMJ Article 120.