A Westerbergian analysis of Kennedy v. Louisiana

I'm a great fan of The Replacements. Apparently the Supremes are too. Because today they seemed to be singing the refrain, "You be me for a while and I'll be you."

As the No Man reported earlier today, the Supremes split 5-2-2 on whether to reconsider their decision in Kennedy v. Louisiana. Here's an excerpt from the five-justice majority's statement respecting the denial of rehearing:

[W]e need not decide whether certain considerations might justify differences in the application of the Cruel and Unusual Punishments Clause to military cases (a matter not presented here for our decision). Cf. Loving v. United States, 517 U. S. 748, 755 (1996).

Note that four of the five justices who signed onto that statement signed onto this statement in 1996:

[W]hen the punishment may be death, there are particular reasons to ensure that the men and women of the Armed Forces do not by reason of serving their country receive less protection than the Constitution provides for civilians.

Loving, 517 U.S. at 774 (Stevens, J., concurring).

So today four justices (Stevens, Souter, Ginsburg, Breyer) said that they don't have to answer a question that they appeared to answer twelve years ago.

Now consider this passage from Justice Scalia's statement respecting denial of rehearing, which was joined by Chief Justice Roberts:

JUSTICE KENNEDY speculates that the Eighth Amendment may permit subjecting a member of the military to a means of punishment that would be cruel and unusual if inflicted upon a civilian for the same crime. . . . It is difficult to imagine, however, how rape of a child could sometimes be deserving of death for a soldier but never for a civilian.

That passage was written by the same justice who opined in Weiss that while "no one can suppose that [protections similar to those in the UCMJ] against improper influence would suffice to validate a state criminal-law system in which felonies were tried by judges serving at the pleasure of the Executive," such a system is constitutionally permissible to try servicemembers. Weiss v. United States, 510 U.S. 163, 198 (1994) (Scalia, J., concurring).

Let's consider a hypothetical. We've previously noted that a Navy convening authority actually attempted to obtain a death sentence in a 1989 court-martial for rape without murder. United States v. Straight, 42 M.J. 244 (C.A.A.F. 1995). Let's suppose that a CA refers a stateside child rape case capitally and it results in a death sentence. Let's also hypothesize that the Supremes grant cert in the case and the four justices from Justice Stevens' Loving concurrence vote to invalidate the death sentence under Kennedy. Would Justice Scalia provide the fifth vote, applying his new found civilian-servicemember equality rationale? To quote Justice Scalia, "Do not believe it." Lawrence v. Texas, 539 U.S. 558, 604 (2003) (Scalia, J., dissenting).