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Could (Will?) the United States Intervene in Kennedy v. Louisiana?

By "Milbarge" and "Fitz-Hume"

One of the most talked-about and controversial opinions from the just-ended Supreme Court term was Kennedy v. Louisiana, which held that the Eighth Amendment bars the execution of those convicted of child rape. One of the reasons for the Court's decision was what it concluded was a consensus of national opinion against the appropriateness of such executions. Included in this survey was the statement that federal law did not provide for the death penalty in child rape cases. But it turns out that the Uniform Code of Military Justice does allow for the death penalty for child rapers in the military, and that law was passed by Congress just a few years ago.

The United States was not a party to the case, and did not file an amicus brief, and no one caught this provision of the military code. The Justice Department apologized for missing the point. For more coverage and analysis, see SCOTUSBlog here, some posts at Volokh here, the Co-Op here, and from Prof. Berman here.

Louisiana is planning to petition for rehearing, and the Washington Post supports that effort (even though it agrees with the outcome of the case). Rehearings are very rarely granted by the Supreme Court, and most people agree that the existence of a never-used authorization in the military justice code won't affect the Kennedy majority's decision, even if it rehears the case and revises its opinion.

Prof. Berman notes that Supreme Court rules disallow the filing of amicus briefs at the rehearing stage (and that makes sense). But does that mean that the DOJ can do nothing besides offer its press release?

I think the United States is able to intervene as a party to the case.

Title 28, Section 2403(a), of the U.S. Code provides for intervention:

In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

Let's break this down a little.

First, the Supreme Court is "a court of the United States." See 28 U.S.C. sec. 451.

Second, the provision in the UCMJ was passed via an Act of Congress, the National Defense Authorization Act for Fiscal Year 2006.

Third, although the DOJ did not quite admit the UCMJ provision was now a dead letter in its statement regarding the missing cite in Kennedy, it seems clear that the constitutionality of the federal law has clearly been "drawn into question," at the very least.

So, the Supreme Court should, on its own, notify the Attorney General of the precariousness of the federal law. Of course, if it had known it was calling the law into question, presumably it would have mentioned it in the opinion! Still, I think we can assume the A.G. knows about the issue by now.

Therefore, if it wants to, the DOJ can intervene in the case, and the Supreme Court is required to allow it ("shall permit"). It seems as if, at a minimum, intervention would allow the DOJ to submit a brief on the issue.

But the notable element here is that intervention is not amicus status; when the U.S. intervenes under Section 2403, it has all the rights of a party to the case -- including, I imagine, the right to petition for rehearing.

A few related thoughts. I suppose it's possible that, if the DOJ tried to intervene now, the Court could say it's too late. Although the intervention statute does not contain a time limit, I doubt it would be read to trump jurisdictional rules. The statute says that the right to intervene is otherwise "subject to the applicable provisions of law." The U.S. couldn't intervene after an appeal period has run and file an untimely notice of appeal and re-animate the case, for example. The U.S. can't intervene in a case that's final.

I don't know if the Court would consider the rehearing stage too late, when the DOJ could have intervened at the cert stage. It could be deemed to have waived its right to intervene by not invoking it at the earliest opportunity. Maybe the equitable doctrine of laches would apply, if the Court felt the U.S. "slept on its rights." In any event, I'm not certain the U.S. would be allowed to intervene at this late date, despite the "shall permit" language of the statute. But I think the best reading of the statute would allow for intervention here.

(A wonky bit of an aside here, to note that the cert stage actually was the earliest time the U.S. could have intervened under Section 2403. Prior to that point, the case was not in "a court of the United States" -- it was in state court. I don't know if Louisiana law allows for federal intervention. If it does, the U.S. could have jumped in sooner, but it wouldn't have been pursuant to federal law. I can muse about all kinds of messes that might arise if, say, the U.S. wanted to initiate action in federal court, for example under the Declaratory Judgment Act, or Rooker-Feldman, or collateral estoppel, but I'll leave that for someone's Federal Courts final exam.)

Finally, the possibility of intervention here puts the DOJ and the Solicitor General's Office in tight spots. Certainly the most likely outcome, whether the U.S. intervenes or not, is that the Court will deny rehearing without comment. The next-most-likely outcome is granting rehearing for the purpose of editing the opinion, but without making any substantive change to the outcome. I would wager that the prospect of the Court even granting full briefing on the significance of the UCMJ provision is exceedingly remote, and I'll eat my shoe if the Court flips the outcome of the case.

So, the SG would be in the awkward position of simultaneously muscling into an essentially final case while admitting it screwed up, all in the service of an almost certainly losing cause. Not enviable. And so my prediction is that the United States will not seek to intervene and file for rehearing.

Ultimately, I think that's a defensible position. The interest of the federal government here is probably not as great as the interests of the states. The DOJ has limited resources, especially considering that the SG's Office is currently a little short-handed. The U.S. does not intervene (or even file amicus briefs) in every case it could; there's nothing wrong with picking one's battles. But this is an election year, and there is also a political component to all this, as Prof. Berman highlights. Would not intervening amount to acquiescing to the Court's opinion? Is not intervening tantamount to agreeing the Court was right?

If Solicitor General nominee Greg Garre gets a confirmation hearing, I wonder if any Senators will ask him why the U.S. didn't intervene in Kennedy, especially if he states that he disagreed with the decision.

Full post as published by Begging the Question on July 10, 2008 (boomark / email).