Behind the Curtain

The Supreme Court is inviting other people to cover for its mistake.

That's not quite fair. Literally everyone involved in the case - petitioner, respondent, amici, justices, and each and every clerk - completely blew it. Though the error (failing to notice that there was a federal statute applicable to members of the military that authorized the death penalty for rape, for those of you out of the loop) was missing something that could probably have been dismissed with a clever enough argument, the majority never even knew it had to be clever. Because Justice Kennedy wrote that opinion, I'm sure no mere facts will change the outcome, but the oral argument (if any occurs) should be good fun for the dissenters, who can spend the time beating up on Kennedy and his cronies for their blunder. That the dissenters made the same mistake in missing that statute won't, of course, give them any pause.

This is all merely a tidying-up of the doctrine, nothing that will have any effect on the result. Five philosopher-kings made their decision and will stick by it, but they have to put on a show of actually taking into account the relevant law.