Miscellaneous

Flaws and Laws

By Anne Skove, Esq.

What happens when the Supremes make a mistake?

Linda Greenhouse pointed out that a military law blog caught Justice Kennedy's error when he noted in Kennedy v. Louisiana that only 6 states allow the death penalty for child rape, and that no federal court allowed it.

This low number was important for his "evolving standards of decency" argument.

In fact, the military allows the death penalty for child rape.

Does it matter, though? Certainly, this is not the first time mistakes have been made. In Blakely, Justice O'Connor listed jurisdictions that could potentially be affected by the decision. Later analysis showed that the list was inaccurate.

Likewise, the majority in Exxon (and in punitive damages cases before it) apparently did their homework (see, e.g., footnotes 13-15), yet still used the phrase "stark unpredictability."

And in Illinois, the case against former Governor Ryan, although interesting for its take on jurors, misread the research it cited.

What to do? Mostly, these mistakes, although disconcerting, are probably of no consequence. Blakely states sorted out themselves; Ryan probably would have fared no better. Seven rather than six is sloppy but not a huge chasm.

Misreading research is more painful in that it signifies a lack of clerk braininess and/or thoroughness. Researchers are loathe to bite the hand that cites.

See In Weighing Death Penalty, A Flaw in Fact, Linda Greenhouse, NYT (July 2, 2008) (why is there a link to the girl-group Supremes in this article?); The Supremes Dis the Military Justice System, CAAFLOG (June 28, 2008); and The Rest of the Story, Jur-E Bulletin (December 14, 2007).

Full post as published by court-o-rama.org on July 01, 2008 (boomark / email).