Failure of DOJ to Disclose Fact May Alter Supreme Court Decision

In a rare move yesterday, the United States Justice Department has admitted an error in not informing the United States Supreme Court of a material fact that may have affected a pending case. The New York Times reports that the Justice Department’s failure to notify the Court of legislation that makes the rape of a child by a member of the military a capital offense caused Justice Kennedy to write an opinion in Kennedy v. Louisiana that contained mistaken facts.

In the Supreme Court case, the constitutionality of the death penalty being applied to child rapists was challenged. In a 5-4 decision, the Supreme Court held that such a penalty is improper. However, Justice Kennedy, writing for the majority, set forth as part of the reasoning for this decision the fact that only six (6) states allow a person to be sentenced to death for such an offense. In addition, Justice Kennedy found that since child rape was not a capital offense under federal law, Louisiana’s imposition of the death penalty was unconstitutional.

However, prior to the ruling, Congress had set forth that, as far as the military is concerned, child rape is a capital offense. Additionally, President Bush issued an executive order which added child rape as a capital offense to the Manual for Courts-Martial. Government lawyers failed to inform the Supreme Court, whom they knew was hearing this challenge, that child rape, at least in some circumstance, was a capital offense under federal law, leading the Court to include this misstatement in its opinion.

The Solicitor General’s office did not file a brief with the Court, and none of the briefs filed by others brought this fact to the attention of the Court. After the opinion was issued, this error was pointed out on an individual’s military law blog, and then later by the New York Times. Until such time, it is presumed that the Supreme Court justices had no knowledge of their error.

Parties to a case can request a rehearing in front of the Supreme Court. With these new facts being brought to light, it would seem likely that Louisiana would ask for such a rehearing. If so, it remains uncertain as to whether any change in the ruling would be made. Additionally, there may be questions as to whether the addition of child rape to the list of military capital offenses is constitutional.

It seems interesting that such a seemingly major error was made in a case such as this. It is implausible to think that the Supreme Court has the time to stay up on every law and change Congress makes, but it seems that many were aware of the case docket and issues within the Department of Justice. To not inform the Court of such a material fact has most likely rendered a decision that would be different had the item been disclosed. Especially with the Court divided 5-4, all it would take would be for this information to sway one Justice for the decision to be reversed. Whether the decision is reversed or not, it is hoped that, at the least, the case be heard again and judged with all relevant facts being disclosed to the Court.