A recent high court ruling is factually flawed. The justices should correct it.
WHEN A NEWSPAPER gets its facts wrong, it’s supposed to publish a
correction, and, if someone’s reputation has been harmed, a retraction
and apology. It can be embarrassing, but the occasional taste of crow
probably does more good than harm to the media’s credibility.
But what if the Supreme Court not only blows a key fact but also
bases its ruling, in part, on that error? There was quite a goof in the
court’s 5 to 4 decision on June 25 banning the death penalty for those
who rape children. The majority determined that capital punishment for
child rape was unconstitutional, in part because a national consensus
had formed against it. As evidence, the court noted that “37
jurisdictions — 36 States plus the Federal Government — have the death
penalty. [But] only six of those jurisdictions authorize the death
penalty for rape of a child.” Actually, only two years ago, Congress
enacted a death penalty for soldiers who commit child rape, as part of
an update to the Uniform Code of Military Justice (UCMJ). Irony of
ironies: The court has cast doubt on the constitutionality of an act of
Congress based on the erroneous claim that the statute did not exist.
This is not the court majority’s fault alone. In his dissent,
Justice Samuel A. Alito Jr. did not spot the error. Neither party in
the case — the state of Louisiana and convicted rapist Patrick Kennedy
— raised it. Nor was it mentioned in 10 friend-of-the-court briefs on
both sides. The Justice Department, which normally weighs in on cases
affecting federal statutes, has admitted that it should have noted the
2006 law. (Blame the media, too; only after a legal blogger, Col.
Dwight H. Sullivan, had pointed out the mistake did a newspaper, the
New York Times, take note.) The UCMJ change was quietly tucked into a
huge defense authorization bill. Still, it passed both houses and
President Bush signed it, so it enjoyed the same presumptions of
validity and constitutionality as any other law.
The Supreme Court’s legitimacy depends not only on the substance of
its rulings but also on the quality of its deliberations. That’s why we
think the court needs to reopen this case — even though we supported
its decision. The losing party, Louisiana, still has time to seek a
rehearing, which the court could grant with the approval of five
justices, including at least one from the majority. The court could
limit reargument to briefs on the significance of the UCMJ provision.
We doubt the case will come out much differently; we certainly hope
not. But this is an opportunity for the court to show a little judicial
humility. Before the court declares its final view on national opinion
about the death penalty, it should accurately assess the view of the
national legislature.