By Corey Rayburn Yung[*]
On June 25, 2008, the United States Supreme Court issued an opinion in Kennedy v. Louisiana holding that the application of the death penalty to the crime of aggravated child rape violated the Eighth Amendment of the United States Constitution. The Court reached a contentious five-to-four decision with Justice Kennedy writing for the majority. Applying the “evolving standards of decency” approach to determine whether the punishment at issue was “cruel and unusual,” the Court examined the laws of the states and federal government. In so doing, the Court wrote that, “Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse.”
Just three days after the opinion was issued, Colonel Dwight Sullivan noted on the CAAFlog blog that the Court’s statement concerning federal law did not tell the whole story. In fact, amendments made by Congress in 2006 to the Uniform Code of Military Justice (UCMJ) explicitly allow for the death penalty in child rape cases. Colonel Sullivan’s post about the omission in the Court’s opinion might have been relegated to the dustbin of Internet history had the leading Supreme Court reporter not taken notice.
On July 2, Linda Greenhouse wrote an article in the New York Times that expanded upon the observation expressed in Colonel Sullivan’s blog post. Greenhouse noted that it was not just Justice Kennedy’s majority opinion that had overlooked the UCMJ amendment. There was no mention of the UCMJ in the party briefs, amicus curiae briefs, or Justice Alito’s dissenting opinion.
Greenhouse’s short column set off a firestorm of media criticism attacking the Court’s opinion in Kennedy. While the criticism initially erupted from traditionally conservative media outlets, calls for rehearing were soon made by those across the political spectrum and throughout the legal blogosphere. Louisiana filed a petition for rehearing based largely upon the Court’s failure to address the UCMJ amendment. Although absent from the initial briefing in the case, the Solicitor General’s office also filed a motion in support of rehearing based upon the Court’s omission. While rehearing motions have very rarely been granted, on September 8 the Court took the unusual step of requesting further briefing on whether the case should be reargued or the original opinion should be amended. That move by the Court potentially indicates that it is seriously considering rehearing the Kennedy case.
While many of the critics and the Louisiana brief used the omission of the military code revision as a vehicle to attack the greater substance of the Court’s opinion, there emerged a legal issue that clearly required attention: was military law relevant to the Court’s reasoning in such cases? Based upon an exhaustive review of prior Supreme Court cases and the role of the military in American society, the answer is clearly “no.” Consequently, it would be a mistake for the Court to grant Louisiana’s motion to rehear the case.