There are six individuals now subject to a final sentence of death under the UCMJ, see NAACP Legal Defense and Educational Fund, Inc., Death Row U. S. A. 66 (Winter 2008), all of whom committed offenses that involved the death of a victim.I'm not sure what the word "final" means in that sentence (does he mean "approved"?). But regardless of what "final" means, the sentence is wrong. There are currently only five individuals sentenced to death under the UCMJ.
It's apparent why Justice Kennedy got that wrong -- he cites NAACP LDF's authoritative Death Row U.S.A. as the source of his numbers. But on page 1 of the Winter 2008 Death Row U.S.A. issue, the words, "As of January 1, 2008" appear in huge type. Had Justice Kennedy written that as of January 1, 2008, there were six individuals subject to a sentence of death under the UCMJ, he would have been right. But as we know, since January 1, 2008, the Navy-Marine Corps Court of Criminal Appeals set aside LCpl Wade Walker's death sentence, a decision that is now final (though he remains vulnerable to being resentenced to death). United States v. Walker, 66 M.J. 721, 757 (N-M. Ct. Crim. App. 2008) ("The sentence is set aside and a rehearing on sentence is authorized."). So when Justice Kennedy writes that there are six individuals "now" subject to military death sentences, he is wrong.
Of course this is a hyper technical point with absolutely no effect on the outcome. But the law is a hyper technical profession.
I'm not arguing that Justice Kennedy should have discovered that a military death sentence was set aside on appeal this year -- though with only six cases to check, it wouldn't have required much effort to make that discovery. But it should have been apparent that he was seeking to establish the state of affairs "now" on the basis of statistics that are exactly 10 months old. And it should have been apparent that that's not legitimate. Consider that on January 1, 2007, the Dow Jones Industrial Average closed at 13,264.82 and today, well, it didn't.
What lessons should we draw from this latest demonstration of the Supreme Court's fallibility? Everyone makes mistakes -- even brilliant Supreme Court justices and clerks. But are there less prosaic lessons to be drawn?
We immediately saw the two mistakes in Kennedy because we're specialists. But the Supreme Court is necessarily a generalist institution. In Isaiah Berlin's taxonomy, we're hedgehogs but Supreme Court justices are foxes. My guess is that specialists in other areas of the law -- admiralty, anti-trust, intellectual property, etc. -- see similar errors when the Supremes venture into their hedges. Which calls to mind once again Justice Jackson's famous quip: "We are not final because we are infallible, we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring).
Of course, there is another possibility -- that military justice is a low-prestige area of the law that Supreme Court justices and clerks handle with less care than they handle other high-prestige specialty areas, like anti-trust or intellectual property. In other words, we're hedgehogs who inhabit a particularly ugly hedge. While I think the ugly hedge theory helps to explain the original mistakes in Kennedy, I doubt it applies to the mistake in today's opinion, which wasn't something that required any military justice expertise to avoid. And one would have thought that Justice Kennedy's chambers would have been extra-careful correcting the previous opinion -- though, for whatever reason, apparently it wasn't. So I'm inclined to chalk this one up to the "everyone makes mistakes" explanation.