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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.
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Read some of Prof. Kenneth Anderson's blogposts (he's at Opinio Juris now, but had his own place for awhile) about the Supreme Court and International Law, an area with a lot of "terms of art" - but they cite to Webster's when they try to figure out what some of them mean.
Maybe those Amicus breifs are important.
LOL! A defense counsel extolling the virtue of the hypertechnical nature of the law. Do you know how many defense counsel I've gone up against that have fudged, misdirected, and outright lied about the facts??? L to the OL, my friend...
My experience has been different: it's defense counsel who rely on hypertechnical readings of the law while trial counsel adopt the excuse "it's close enough for government work."
To my mind, one of the most interesting things about today's decision not to grant reconsideration was the fact that 7 justices voted to deny it when only 5 were in the original majority.
I also found interesting Justice Scalia's statement that he was "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." While we lawyers might know what he means, his words sound incredibly arrogant and elitist.
From a political standpoint, I wonder if there isn't some hay to be made in that regard.
Also, the whole affair makes the big deal about improved SCOTUS access for military folk seem like less of a big deal, no? I refer to the part where they say that death for rape in the military might be constitutional even if it isn't for civilians.
Finally, I think the Kennedy shows some disdain for the military justice system when he states that "the laws of the separate States, which have responsibility for the administration of the criminal law for their civilian populations, are entitled to considerable weight over and above the punishments Congress and the President consider appropriate in the military context."
On the whole, I say it's a train wreck for the military justice system.
Given that the most recent military-justice(ish) cases that the Supreme Court has recently heard come from the Military Commissions, perhaps Justice Kennedy's apparent distain of Congress's and the President's attempt a military justice is understandable.
THAT's a train wreck.
Political hay? Ugh.
Justice Scalia wasn't just making a nuanced legal relevance point - his words were carefully chosen (as usual) to evoke the very essence of his disagreement with the arrogant and elitist manner in which the majority opinion was reached. Apparently those words had the desired effect...
You mentioned the Walker case getting the death sentence set aside - does this mean he's back at Camp Lejuene? Do the Marines have any defense counsel experienced enough to do a capital case?
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