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July 02, 2008

We Were Shocked....

...shocked we tell you, to hear (upon alighting from betwixt the marital sheets) that our fave SC Justice had once again waved his butter knife over the Constitution in style majestical and caused yet another federal statute to vanish into thin air!

Linda Greenhouse — yes, that Linda Greenhouse — reports:

When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.

This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.

It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.

The lawyers missed it. The law clerks missed it. The justices missed it.

Who caught it?

A blogger.

A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty.

At this rate, we begin to fear for the entire federal code. Whatever would we do without Justice Kennedy?

He has become the Sally Struthers of SCOTUS, forever finding adorable little Penumbral Rights and Evolving Standards of Decency wandering alone and forlorn upon the streets of gay Paree. This would be fine if he didn't insist upon bringing the puppy-eyed little buggers home with him, but it's getting so the Editorial Staff are afraid to open our mailbox for fear of being accosted:


You’ve probably seen Keith Olbermann's invaluable Special Comments. Every night this brave truth teller defies the brutal repression of the current administration to warn us how millions of completely innocent American citizens have been locked up in Guantanamo Bay simply for daring to speak truth to fascism. In fact if not for Keith's nightly reminders, most Americans would probably remain tragically unaware their Constitutional rights are vanishing faster than serious news stories on the Fox News website. But all is not lost, mes amis.

One man: Justice Anthony Kennedy, stands between the Republic we hold dear and utter Tyranny. Striding boldly like a Colossus where others timidly toe the line, Justice Kennedy bursts the stale, quotidian shackles of precedent and judicial modesty asunder with supreme confidence in his own unerring infallibility.

We don’t all get to make a difference in this world. You’ve probably considered Opposing the Chimp before, but it’s so easy to make excuses like, ‘Ummm... American Idol is like, totally coming on at 8 o'clock’, or “I haven't voted since the 2000 election (in which my party demanded electronic ballots, which in turn allowed me to say I've completely lost faith in the electoral process) [exploding head]". You may even say, "What is the point of even trying in virtual police state? We all remember what happened to Keith Olbermann: dude is locked up in an airless cell in Gitmo with the frilly panties of Fascism pulled over his head."

But you can make a difference. For the price of a cup of coffee - just 50 cents a day - you can adopt your very own European Evolving Standard of Decency and bring it here to the U. S. of A.! We’ll even send you a picture of your young Standard of the generosity of patriots like you have saved from the clutches of Dick Cheney and Barney the White House Terrier. You can post your photo on your refrigerator to remind you of money well spent.

You owe it to your children to help Justice Kennedy rescue the few shreds of decency and civil rights that have managed to elude the depredations of your elected representatives. Remember our motto here at Evolving Standards R Us:

“L'etat? C'est moi!”

Seriously, the Editorial Staff are not quite sure why CAAFlog is so surprised:

Wednesday's controversial Supreme Court decision in Kennedy v. Louisiana, No. 07-343, canvassed the law in the United States governing the maximum permissible sentence for rape of a child. Remarkably, both the majority and the dissent overlooked a congressional statute right on point: the National Defense Authorization Act for Fiscal Year 2006.

As we noted earlier, Boumediene put us all on notice that the majority has slight regard for either Congressional statutes or the notion of judicial deference:

This excessive genuflection to the Black Nine has been bothering me quite a bit, too. Just why everyone should be inclined to perform the Thousand Prostrations simply because yet another imperial edict, informed by the kind of toffee nosed legal opinion that results from strolling down the Champs Elysees at midnight with a badly rolled Gauloise and a pocketful of anomie, has once again been handed down from on high continues to elude me.

In case it wasn't obvious, we're not in a serious mood here today, but the topic of SCOTUS simply ignoring Congress is a serious subject. After reviewing what just happened a few weeks ago, one wonders: did the majority "overlook" the relevant federal statute?

Or simply choose to ignore it? We sense a pattern developing, here.

If we didn't know better, we'd suspect Justice Kennedy was developing a coherent judicial philosophy. But that would be downright silly, wouldn't it?

Posted by Cassandra at July 2, 2008 07:04 AM

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Piffle. That's just military law. It can't be expected to apply to civilization.

Posted by: Grim at July 2, 2008 09:50 AM

Silence, Barbarian!

Posted by: Justice Kennedy at July 2, 2008 10:15 AM

I hope that this fiasco turns out to be nothing more than a mere jaw-dropping oversight on the part of a battalion of attorneys and law clerks.

I can't bear to think otherwise.

Posted by: spd rdr at July 2, 2008 10:28 AM

I hate to say I told ya so... but:

I WOULD like to point out, at least back in 1992, the UCMJ provided for the death penalty for rape (and it did NOT specify the age of the victim as a requirement). I personally have no problem with that.

Posted by: MikeD at June 26, 2008 09:49 AM

Posted by: MikeD at July 2, 2008 11:00 AM

I hope that this fiasco turns out to be nothing more than a mere jaw-dropping oversight on the part of a battalion of attorneys and law clerks.

Do we detect the idle chatter of a peasant from the 4th Circuit?

[drawing back in distaste]


Posted by: Justice Kennedy at July 2, 2008 11:19 AM

Ok, what I find funny (or sad, or horrifying, depending on how you look at it) is that the same people who usually glorify the decisions of the liberal 5 on the court as merely correctly interpreting whatever Constitutional aspect is being highlighted, are HORRIFIED, by the fact that Justice Scalia said that, GASP, the Second Amendment of the Constitution DOES say that people have a right to bear arms.

I think the NYT's headline (which I won't get exactly correct because I can't be bothered to go check it right now) "Court finds NEW right (emphasis mine) in Constitution" says it all.

NEW RIGHT? Really? REALLY? Makes me crazy. And the Left is up in arms that Scalia won't take the "but guns are dangerous" argument as seriously as he takes, you know, what the Founders wrote in the Constitution.

Ok. Rant over.

Posted by: Kimberly at July 2, 2008 11:22 AM

How many times have I told y'all about how Justice Scalia once told me (as a member of a group of ten other Federalist Society members) that the the worst decisions of the Court are always delivered in June? He said that the rush to get something out the door before the end of the term often resulted in dramatically bad reasoning and application of the law.

Heller might be the exception to this overbroad rule, but then, Scalia wrote that one himself.

Posted by: spd rdr at July 2, 2008 11:31 AM

"Court finds NEW right (emphasis mine) in Constitution"

Can't wait for the headline that reads, "Landlord Finds New Vacancies at 620 Eighth Avenue"...

Posted by: BillT at July 2, 2008 11:37 AM

Dude... like, did you say something?

And move over - you're blocking my rayz.

Posted by: Justice Kennedy, hangin' ten... at July 2, 2008 11:37 AM

Ok, ok, alright already!!!

The thought of Sally Struthers in my mailbox, volume issues aside, was enough to cause me to cave and send a check made out to the EESD -European Evolving Standard of Decency c/o SCOTUS & Progressives Who Must Be Obeyed World Wide.

The law according to the EU subset of RCI acrobats in robes? May we be delivered.

From my cold, dead Corpus within the sanctity of my domain, eminently, or something like that...

Posted by: Lewis Medlock at July 2, 2008 11:39 AM

What, you actually expect SCOTUS to know what the law is?

Where's your Evolving Standards of Jurisprudence?

Posted by: Schnauzer at July 2, 2008 11:50 AM

At least the court can plausably claim that they had made an honest attempt and overlooked the UCMJ.

In the Heller dissent, they couldn't even get the facts right in there own citations.

...points out at p.2 of the Stevens dissent he refers to NFA and US v. Miller: "Upholding a conviction under that Act, this Court held that..." Same mistake the 9th Circus made years ago and had to issue a new opinion, since Miller was never convicted...

It also claims the President created the National Guard in 1901 when in fact Congress created the National Guard in 1903.

Extra points for a twofer!

One might begin to think they had a policy preference they wanted, and then fit the law (well, not the real, actual law, but the law as they wished is was) to support it.

Posted by: Yu-Ain Gonnano at July 2, 2008 12:17 PM

...you actually expect SCOTUS to know what the law is?

Of course not -- at least, not until they write it.

Posted by: BillT at July 2, 2008 12:27 PM

As I wrote in an earlier thread, Kennedy's "evolving standards" argument fails because the trend has actually been to ADD capital punishment for child rape. Indeed, our evolving standard of decency has seen us place more and more significance on crimes against children, and consequently, impose greater penalties upon those who harm them. If that isn't the evolving standard, then I don't know what is.

Posted by: XBradTC at July 2, 2008 12:42 PM

...you actually expect SCOTUS to know what the law is?
Of course not -- at least, not until they write it.

Heck, it doesn't matter even after they've written it.

Stevens, appearently, can't be bothered to read his own citations. He just makes it up as he goes along. And that the other three who signed on to it didn't catch it only shows that they can't even be bothered to read their own bloody decision.

Posted by: Yu-Ain Gonnano at July 2, 2008 02:13 PM

...the rush to get something out the door before the end of the term often resulted in dramatically bad reasoning and application of the law.

Yo, spd -- what's the legal term for "knowingly doing something absolutely stupid without giving one solitary thought to the consequences just because you're in a hurry to get out of work"?

Y'know, just so's I can sound all erudite 'n' stuff the next time...

Posted by: BillT at July 2, 2008 03:04 PM

Socialists, Democrats, Leftist agitators, protestor agent provocateurs, and tranzies all seem to yell very loud about the abuse of power by someone called Bush, but the surprising truth of the matter is that they, All of Them, are the ones at the fore front of creating a system to abuse power.

Fancy that.

"knowingly doing something absolutely stupid without giving one solitary thought to the consequences just because you're in a hurry to get out of work"?

Usually that's unprofessionalism and unethical. But to call the Justices unprofessional and unethical would be to insult and dilute unprofessionalism and unethical actions.

Posted by: Ymarsakar at July 2, 2008 04:02 PM

I did not mean to insult or belittle the intelligence or dilligence of our High Justices (bows head nine times). Nor did I mean to demean the efforts of their worthy cadre of law clerks, upon whose own year-long time-tested expertise generally the ultimate decision of the Court so often rests(nods generally in the direction of the Fillintheblank Law School clerkship program and endowment fund). But if we are going to adopt a "consensus" model as the final tilting factor in matters constitutional, then I propose that we just cut the bullshit and adopt that most basic model of democratic law from which all subsequent models of justice have evolved. Yeah. That one.

Posted by: spd rdr at July 2, 2008 04:44 PM

Geez, Kennedy *does* look like he needs a vacation.

But what's with the braided headband?

Posted by: BillT at July 2, 2008 05:22 PM

"wandering alone and forlorn upon the streets of gay Paree."
Aye, and thus befuddled in his wanderlust of those gay street, his foul deed shall smell above the earth…
”from which all subsequent models of justice have evolved”
But are we talking dumb mouths ope their ruby lips or the part of the curse lighting upon the limbs of men? Personally I dread the domestic fury and fierce civil strife, but that’s just me.

Ahh, Domina calls I must make haste.

Posted by: Pseudolus at July 2, 2008 06:56 PM


Posted by: Domino's Delivers at July 2, 2008 08:45 PM

Dork :)

Posted by: Cassandra at July 2, 2008 08:59 PM

Thought Domina was gonna call first?

Posted by: BillT at July 3, 2008 02:32 AM

It's a temporal paradox.

Posted by: Ymarsakar at July 3, 2008 02:45 AM

Oh, sorta like a fly-by-night HMO...

Posted by: BillT at July 3, 2008 03:36 AM

Did someone call me?

Posted by: The Pizza Slut at July 3, 2008 06:09 AM

Well Helloooooo Nurse!

Posted by: Yakko at July 3, 2008 08:42 AM

The Supreme Court is established by the Constitution. Amendment 11 to the Constitution says that the Court has no jurisdiction in any issue brought by a Citizen of another Nation.
I guess the Court has jurisdiction over what the Constitution contains.

Oh, by the way. The ruling of the Court constitutes an ex post facto law, since its ruling was not in effect when the persons in question were captured.

No, they cannot read, and do not know the law.

Posted by: Tom Johnson at July 4, 2008 11:43 AM