Petition to Save Face - Denied

The Supreme Court has decided.

The petition for rehearing is denied.

The "we're still right" position will be effected simply by modifying the deficient original opinions (Opinion of the Court and dissenting opinion) very slightly to note that, indeed, there is a law that demolishes the foundation of the majority's holding, but no one cares.

The "it doesn't matter" position is briefly described in the opinion respecting the denial of rehearing, and as it's not long, you might as well read it. The rationale seems to follows two main threads: first, what Congress did was essentially the maintenance of inertia. Congress did not specifically authorize the death penalty for child rape, but maintained the status quo ante, and no actions of the legislative or executive branches demonstrate a new affirmation of the desirability of execution as a punishment for child rape. The second position is that the Eighth Amendment's bar on cruel and unusual punishment may have different applications in the civilian and military contexts, and thus there is no contradiction in striking down the death penalty for child rape among civilian defendants while allowing it in the case of military defendants.

Justice Scalia (joined by Chief Justice Roberts), while having voted to deny the petition for rehearing, nevertheless wrote separately about his view of the case. The two dissented in the original case, of course, but Justice Scalia colorfully expresses why he voted to deny the rehearing anyway:

I am 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.

In other words, why waste the time? The result was set even before the original briefs and oral argument; why conduct the farce again?

Justice Scalia takes down the majority pretty well. First, he doubts Justice Kennedy's assertion that the new authorization was merely the maintenance of inertia and claims some facts in support of his view that there were active, conscious moves in favor of establishing child rape as an independent capital offense under the Uniform Code of Military Justice. Second, of course, is the devastating critique of the Eighth Amendment dualism Justice Kennedy's position creates. Cruel and unusual punishment, if cruel and unusual, ought not to be acceptable when exacted against members of the military; or is that precisely what Justice Kennedy meant? Perhaps not, and perhaps he disclaimed that in his opinion respecting the denial, but the problem is that that denial was an implicit embrace of such dualism. The issue whether the Eighth Amendment is different for members of the military surely is one which ought to be briefed and argued extensively before the Court comes to a decision on it; when the Court comes to such a decision, saying "But we really don't mean to decide the issue" won't fly.

Ultimately, the Court blew it and this tidying up created a mess of its own. Members of the military - you must be worried, huh?

There was one thing that jumped out at me about the two opinions. The "inertia" element, as I've been calling it, really cuts both ways. Congress and the President may merely have been unconsciously keeping the death penalty authorized for child rape because that's the way it had always been, and no one thought much about it, so that, absent someone's actually paying close attention, the authorization would continue. But then, the Supreme Court, only a few decades ago, imposed a moratorium on the death penalty when it determined that systemic problems in the administration of capital cases made the death penalty defective across the board. Further, the Court also determined that the death penalty was excessive (and thus violative of the Eighth Amendment) when applied to the rape of an adult woman. Eventually the Court allowed states to impose the death penalty in homicide cases again, but by that time, two things had happened. First, states had drafted new statutes to determine the appropriate punishment for serious homicide in the interregnum that existed when the death penalty was not permitted. Second, states had altered their rape laws to conform to Supreme Court standards, and if they repealed the death penalty for child rape, it could be understood as a prediction that the Court would strike down such laws under the same logic that caused it to strike down the death penalty for adult rape. Thus, by the time the Court got around to permitting states to impose the death penalty again, the status quo was one shaped by recent Supreme Court precedent. Many states, fearing their criminal justice systems would not pass constitutional muster, had changed them to preclude capital punishment. At that point, imposing the death penalty again would have taken actively passing legislation to alter the law.

Thus, if few states had the death penalty for child rape, no wonder. It might have been because citizens of those states rejected such a harsh punishment; it might, however, have been the case because the Supreme Court artificially imposed a contrary system, and other legislative business had prevented the reimposition of harsh punishments after the Supreme Court's interference stopped. As I said before, the inertia argument cuts both ways. The Supreme Court earlier imposed a regime, the inertial effects of which are still with us in the form of a system where few states view child rape as a capital crime.

So, the national consensus against it is...a consensus created by the Court. The Court can make you do something, then claim your forced action as evidence of your agreement with the Court's view!

There's a lot to talk about here, and changing a footnote here and a sentence there in a bad opinion won't paper over the problem.

Bad form.