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July 02, 2008



So where do you go when the SCOTUS screws up ?


Frankly--I think the AG who lost, should seek a rehearing or failing that--embarrass the shit out of Kennedy and undercut the strength of the opinion by seeking a revision of the opinion based on the error. I've never seen the later done in the SCOTUS but I have in lower courts.

Otherwise this will surely come up in the next case that tests the matter.


I truly can't believe this error--it is breathtaking and the more I think of it, the more shocking it is. NOT A SINGLE LAW CLERK for any of the nine justices thought to look up Congressional action on the military code..probably because not a single one of them served in the military or considered that while Congress doesn't normally deal with sentencing for child rape, it does on military matters.

Not a single clerk.

Kennedy, of course, has to be the most embarrassed but all the judges and their clerks must be mortified.


http://technorati.com/posts/M0LpQUllVFBTgw5F4LtZmGLnO2phSmczFj6ffuWj%2BpA%3D?sub=%2BF9Wg4EL%2FBCoHt9kTv50bEP5X9crmYq4B76i4sqm0Ms%3D>2nd error by this court.


Yes, bit IIRC that was only in the Stevens' dissent..Kennedy's vote was the swing vote in the chid rape death penalty case.


The other day I read that for 19 years Kenedy has travelled to Switzerland every summer to lecture on consitutional law.

I wonder if Kennedy goes to Switzerlnd to study more than to teach.


Is there a more reliable test for "evolving standards" than the laws passed by a Congress elected by the people throughout the land?
I doubt it's the bien pensants at the Berne fondu-erie.


Are we really that surprised seeing how the majority in Hamdi, Hamdan, & Boumedienne, have deliberated ignored or misinterpreted
the relevant precedents on military tribunals; or the other errors regarding
whether Al Queda is involved in a conflict
'of an international character' as Geneva
requires. Who did Kennedy hire as a clerk, last year, anyway.


Nothing surprises me anymore. When they have to turn themselves into pretzels to find a right for an abortion, a right for habeas corpus for unlawful enemy combatants, a right to take private property from one citizen and give it to another citizen and then can't find a right that is clearly spelled out in the 2nd amendment, I quit being surprised. I'm sure our founding fathers wanted us to wake up one morning during the month of June to find out what 9 unelected justices decided we could and couldn't do. The vision they had could not have included Breyer, Stevens, Bader-Ginsberg and Kennedy.


I left out Souter.


Back in the old days before C-SPAN, Congress used to hold hearings on pending legislation. The purpose of the hearings was to hear testimony and receive other evidence to allow the Congress to weigh the benefit of the pending legislation. The record of those hearings would sometimes be used by courts in interpreting the legislative intent. Occasionally a lawyer would unearth the legislative record when researching a brief. Apparently that didn't work with Congress' 2006 revisions to the UCMJ.

Does Congress still hold old-fashioned, substantive hearings or is it just Chuck Schumer and Henry Waxman venting spleens for the benefit of the cameras?


I don't think there has been a substantive hearing since the democrat majority in 2006. And I can't vouch for the prior republican majority either.

Congress needs to be taken down a peg. They need to be stripped of all their perq's. We need some people serving who are actually doing it to serve.

Oh and note Obama got a sweetheart loan deal on his Tony Rezko house. LUN


That's a pretty big whoopsie. It's a distinguishable whoopsie (as the death penalty for child rape is Federal Military Law -- and there are reasons military law is harsher than regular criminal law), but one that should have been addressed in the decision.

I think some law clerk's shining future just got a bit tarnished...


It seems to me that if one claims that something Congress just enacted is outside conventional standards you are full of it and I don't think the distinction with military justice works in this case.


Under Rule 44 of the Court's rules, the state has until July 21 to seek reconsideration:

Rule 44. Rehearing
1. Any petition for the rehearing of any judgment or decision of the Court on the merits shall be filed within 25 days after entry of the judgment or decision, unless the Court or a Justice shortens or extends the time. The petitioner shall file 40 copies of the rehearing petition and shall pay the filing fee prescribed by Rule 38(b), except that a petitioner proceeding in forma pauperis under Rule 39, including an inmate of an institution, shall file the number of copies required for a petition by such a person under Rule 12.2. The petition shall state its grounds briefly and distinctly and shall be served as required by Rule 29. The petition shall be presented together with certification of counsel (or of a party unrepresented by counsel) that it is presented in good faith and not for delay; one copy of the certificate shall bear the signature of counsel (or of a party unrepresented by counsel). A copy of the certificate shall follow and be attached to each copy of the petition. A petition for rehearing is not subject to oral argument and will not be granted except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision.
2. Any petition for the rehearing of an order denying a petition for a writ of certiorari or extraordinary writ shall be filed within 25 days after the date of the order of denial and shall comply with all the form and filing requirements of paragraph 1 of this Rule, including the payment of the filing fee if required, but its grounds shall be limited to intervening circumstances of a substantial or controlling effect or to other substantial grounds not previously presented. The petition shall be presented together with certification of counsel (or of a party unrepresented by counsel) that it is restricted to the grounds specified in this paragraph and that it is presented in good faith and not for delay; one copy of the certificate shall bear the signature of counsel (or of a party unrepresented by counsel). The certificate shall be bound with each copy of the petition. The Clerk will not file a petition without a certificate. The petition is not subject to oral argument.
3. The Clerk will not file any response to a petition for rehearing unless the Court requests a response. In the absence of extraordinary circumstances, the Court will not grant a petition for rehearing without first requesting a response.
4. The Clerk will not file consecutive petitions and petitions that are out of time under this Rule.
5. The Clerk will not file any brief for an amicus curiae in support of, or in opposition to, a petition for rehearing.
6. If the Clerk determines that a petition for rehearing submitted timely and in good faith is in a form that does not comply with this Rule or with Rule 33 or Rule 34, the Clerk will return it with a letter indicating the deficiency. A corrected petition for rehearing submitted in accordance with Rule 29.2 no more than 15 days after the date of the Clerk's letter will be deemed timely.


Soylent Red

Hey, I have a stupid non-lawyer question...

Even though this works against the SCOTUS decision, doesn't it also simultaneously work against the UCMJ law?

I mean, won't people try to argue that just because they didn't catch the UCMJ law, doesn't make it that law right and the SCOTUS decision wrong. They will argue that, in fact, the much more broadly used court precedent should make the UCMJ law un-Constitutional as well.

Or am I just ignint?

Wait, don't answer that...


What makes every think the "missed" it? From the look at how liberals behave, my guess is they purposely ignored it!


And Volokh points out the NYT article closes with the fact that the last time a military death penalty was enacted was in 1961 - for the rape of an 11-year old girl.

Nice one SCOTUS.


Holy cow!


Which brings us back to evolving standards. It is now okay to rape a child. Well, not exactly okay, but certainly not worthy of the death penalty. Times are a changin'...


I guess this means that this isn't "settled law"


Well, Soylent, if I had someone awaiting an execution order under the UCMJ, I'd certainly argue that the Court precluded that.
In the bigger sense though, if the Court's ruling is based on an obvious factual error--and this one seems to be unless Kennedy just decided on his own that Congress doesn't exist or is in no way reflective of prevailing standards --I'd think the opinion was of dubious precedential value.


the Court's ruling is based on an obvious factual error

True, but it's not as though it would have made a difference. With these Alice-in-Wonderland justices (sentence first, trial later) they figure out which side they're on and then reverse engineer a justification. They just screwed this one up, but had they uncovered it, they would have found their way around it.


When I visited the Newseum in Washington DC last month one large display I noticed was about Justice Scalia. It loudly trumpeted his admission of fault and apology to some reporter for asking her not to post his comments from some speech he had made. The point of the display was entirely to present the media as wonderful and Scalia as a dimwit or mean spirited or wrong etc.

Any guesses on whether this Justice Kennedy gaffe will recieve similar highlighting in any national venue? I'm holding my breath.


Much like the "Chinese Communist" torture revelations, prompted by the AQ lobby's representatives at the Times; haven't been misinterpreted, see the Biderman article:
<http://graphics8.nytimes.com/packages/pdf/national/20080702_1957.pdf> which is of course presented out of context, to say how
terrorists train themselves to withhold interrogation, yet simultaneously are alway
told to cry torture; as the Birmingham AQ manual mandates.


"and note Obama got a sweetheart loan deal on his Tony Rezko house."

Jane, there is a lot more to the story at


"Is there much of any doubt in any reasonable person’s mind that this was a sweet Rezko deal?"




Thanks for the link

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