9:40 - Tell it to the New York Times:

"Chief Justice Roberts gets the citation wrong, proving that he is neither an originalist nor a strict constructionist. What Mr. Dylan actually sings, of course, is, 'When you ain’t got nothing, you got nothing to lose.'”

NYT is so TTT

I wouldn't blame the clerk here---most lawyers have no idea about military law. For example, Fisher himself wasn't aware of the 2006 statute, but he was aware (and did not mention) the 1977 statute making rape punishable by death. Because he thought it was defunct. Having worked in military law, I would disagree. All it would take would be a commander or a prosecutor who was really zealous, and I think you would learn that the statute isn't defunct. It would make for an interesting court case, tho.

Neither the majority nor the dissent caught, and certainly the dissent would have if it could. It's unfair to blame the clerks here. It's the attorneys' jobs, especially the attorneys for the State of LA, to find the cite. This also shows the importance of having good amicus briefs. You always have them in commercial cases. But they are rarer in criminal cases.

This is almost as interesting as the Kirkland summer who jumped into the river while on an architectural boat tour.

So, if an opinion is perfect and brilliant, the Justice gets the credit. If there's an entirely understandable mistake, the clerk is SOL. Okay. I think your approach is shitty, Lat.

With respect to the commenter who said that it was up to the lawyers--well yeah, maybe so, but the bottom line is that the Court decides for all of us. They're supposed to get it right. They didn't.

Perhaps if they weren't so damned arrogant--i.e., arrogating to themselves the right to be our moral guardians, then things like this would be tolerable.

They took away a right of the people--and they didn't have their facts straight. They ought to fix it, or resign.

10:16 - Clerks are responsible for cite-checking and Westlaw research, not justices.

An error in fundamental reasoning or logic = Justice's fault. E.g., Bush v. Gore = Not clerk's fault.

An overlooked statute or other research mistake = Clerk's fault.

AMK may do his own internet research - http://seattletimes.nwsource.com/html/politics/2002246730_delay20.html - but most justices don't.

Remember the 70’s book “Military Justice Is to Justice as Military Music Is to Music” ?
http://www.amazon.com/Military-justice-military-Harper-colophon/dp/0060902302

Of course you don’t. Most of you were born after 1980.

Anyhow, the Uniform Code of Military Justice has little to do with Kennedy’s argument regarding the “evolving standards of decency”. It is apples vs. oranges. Johann Sebastian Bach vs. John Philip Sousa.

FWIW, U.S. Supreme Court clerks ordinarily aren't responsible for cite-checking and citation format. In most cases, the clerk submits the draft to the Court staff, and they do the cite-checking and citation format. Or at least that's how it was when I was there.

-former SCOTUS clerk

10:52 - I don't know which justice you clerked for, but the justice I clerked for did have clerks do substantive cite checks.

If an opinion said "there is no federal law providing for X," clerks were responsible for verifying that proposition.

I think I know who 10:58 clerked for.

9:40 - what the hell is an ‘official lyric,’ you tool?

"This also shows the importance of having good amicus briefs. You always have them in commercial cases. But they are rarer in criminal cases. "

Yeah. And that case only had briefs from seven amici with one doing part of the oral argument.

Guys at my high school used to make cite checking mistakes during their supreme court clerkship all the time, it was no big deal.

10:22 says:
"Perhaps if they weren't so damned arrogant--i.e., arrogating to themselves the right to be our moral guardians, then things like this would be tolerable.

They took away a right of the people--and they didn't have their facts straight. They ought to fix it, or resign."

our moral guardians? settle down there, killer.

besides, if this provision of military law would have been so damned persuasive, perhaps SOMEONE involved in the case would have cited it. the fact that no one mentioned it tells me that maybe it wasn't as crucial as some seem to think.

"Anyhow, the Uniform Code of Military Justice has little to do with Kennedy’s argument regarding the “evolving standards of decency”. It is apples vs. oranges. Johann Sebastian Bach vs. John Philip Sousa."

Boy, you're a smart one, aren't you? The issue is whether Congress has authorized the death penalty for child rapists--it has. It's the same Eighth Amendment, right?

"Anyhow, the Uniform Code of Military Justice has little to do with Kennedy’s argument regarding the “evolving standards of decency”. It is apples vs. oranges. Johann Sebastian Bach vs. John Philip Sousa."

Boy, you're a smart one, aren't you? The issue is whether Congress has authorized the death penalty for child rapists--it has. It's the same Eighth Amendment, right?

"Anyhow, the Uniform Code of Military Justice has little to do with Kennedy’s argument regarding the “evolving standards of decency”. It is apples vs. oranges. Johann Sebastian Bach vs. John Philip Sousa."

Boy, you're a smart one, aren't you? The issue is whether Congress has authorized the death penalty for child rapists--it has. It's the same Eighth Amendment, right?

No, it isn't, 11:26/27. Military justice is "different." Exactly how different, and exactly how much latitude the Congress has has not been settled. Miranda, for example, does not apply to military personnel. A more far-reaching protection has been written into the UCMJ, but on the other hand, search and seizure plays out very differently in on-base housing (which certain ranks of military personnel are required to live in.)

In 1977, the Congress passed a law permitting execution for rape under the UCMJ. The UCMJ currently criminalizes adultery and "sodomy" which includes anything that involves, well, mouths.

I like when people post things like "Boy, you're a smart one," and then proceed to post it three times because they can't figure out like the rest of us that if you just wait long enough, your post will show up. Hehe!

Don't the other justices and their clerks share part of the blame here? Someone should have caught the error of AMK / AMK's clerk.

Adultery is a miltary crime because it is so corrosive to good order in discipline. If I am a superior and I am doing a subordinate's spouse, that's a real problem in the military, and it should be criminally punished. With respect to consensual non-homosexual sodomy with no other issues (like adultery), I doubt that a prosecution would succeed on Constitutional grounds. But all that should be to one side--the bottom line is that Congress has determined that the death penalty can be applied to rapists of young children--how is that not relevant to a nose-count of legislatures is beyond me?

Kennedy screwed up. And since he likes to insult the polity by saying things like we risk brutality when we execute, then the polity gets to say nasty things back. You're a Supreme Court Justice--get it right. He didn't.

Um, 12:19, prosecution for consensual non-homosexual sodomy suceeds all the time.

I.e., look up 10 U.S.C. s 925. Although a case in 2008 (by the Coast Guard COA) suggested that there might be a problem with criminalizing consensual sodomy between opposite-sex partners, it ultimately decided there was no problem because ANY sexual contact on that military base was barred. And I think it stands alone in even finding a problem. Military personnel are still regularly convicted of sodomy.

The problem you mention re: adultery could be dealt with under the fraternization section. There is no reason to have a separate adultery section. If two military personnel are cheating on their civilian spouses, and are of equal rank, and are not in a position to help or hinder eachother's careers, your reasoning falls flat. And yet, if caught, these people are still convicted.

So, although omitting it was incorrect, the earlier statement that we should look to the UCMJ and that the Eighth Amendment applies is unadulterated, uninformed, BS.

The 8th Amendment applies to the military--do you think otherwise.

Second, with respect to sodomy, the conviction is usually as a result of another crime. The military is not prosecuting consensual non-homosexual oral/anal sex. And there would be an issue under Lawrence if it were. The reason you have so little caselaw is that non-problematic sodomy is simply not prosecuted. Now, there may be an argument that sodomy is prejudical to good order and discipline so that it needs to be a crime under the UCMJ, but that doesn't mean that the Constitution doesn't apply.

My earlier post explained why adultery is a crime. That non-prejudicial adultery is swept up in the UCMJ does not obviate my point.

But these differences between military law and civilian law in no way undermine the point that Congress has authorized capital punishment for child rape. If we are trying to discern "evolving standards of decency", then Congress' action clearly is relevant. If it is "indecent" to execute a civilian child rapist, then it is indecent to execute a military one. Or do you dispute that obvious point.

Miranda does apply to the military. It applies to all persons in the US when questioned in custody. Good try though.

Isn't adultery still a crime in most states? The only difference with the military is that they choose to enforce that law.

SCOTUS = TTT

>>Don't the other justices and their clerks share part of the blame here?

Yes. They're called the dissent.

I worked for the JAG Corps. Miranda does NOT apply to military personnel being questioned for UCMJ crimes. There is an article (I forget the number on that) which parallels Miranda (and is actually more wide-ranging) that covers military personnel. This was an issue in a case I was a legal advisor for.

If you want to say the 8th Amend. is different, show me a case.

Very few military cases go to court martial, let alone up on appeal. Usually sodomy = article 15 and out. If you read the annotations to the code section I quoted above, you will find that 1/4 to 1/3 of cases involve "just sodomy." (A disturbing number involve non-forcible sodomy with minors--trigger warning.)

I know about this in part b/c of how nasty some military divorce proceedings are, I had military lawyers telling me that Sgt. divorces/is divorcing wife, wife tells comand that she blew him/he went down on her, husband gets a general discharge under honorable circumstances, and because he hasn't yet served 20 years, doesn't get the awesome military pension.

There have been some cases saying that off-base, hetero, consensual, non-public sodomy cannot be punished. But most of the time, they find some way around that issue. (Or Sarge and his wife get it on in on-base housing occassionally).

The JAG I worked for refused to bring sodomy charges when we realized we couldn't bring adultery charges since the couple never engaged in "intercourse." But I think he is rare. If it had been other than oral cop., he might have reached a different result.

What commands are handing out NJP and OTH discharges for consensual sodomy between husband and wife (with no other allegations, e.g., rape)? My guess is very very few. And if they are, the command is wasting its time . . . .

I was in the Navy for a while and never saw such a bullshit charge.

I hope you weren't dispensing such lousy advice as a JAG. The military gives broader protection, which of course, encompasses Miranda. To say Miranda does not apply is plain wrong. The military's warning could be taken away...but the SC would strike down a warning that limited Miranda.

By the way, the rights given under Miranda and the military's warnings are identical. It's the timing of when the warning is given.

3:25--It is a BS charge, don't get me wrong. And I think this was more prevalent in the 80's and 90's than now. But I was told by more experienced lawyers (who had served all over the place, so I don't know which command it was) that this kind of nasty, post-divorce contretemps had happened more than once.

Like you said, most of the appellate cases involved other charges. I couldn't find a single case involving a spouse/significant other that didn't at least involve allegations of force or assualt.

What was gross was the case where the serviceman repeatedly raped his gf (also a servicemember & 4 mos. pregnant with their child) and finally slit her throat (after trying to suffocate her, she survived both) and he was convicted of assault but not rape.

But it is possible to bring charges against someone for consensual sodomy. I really wish the military would get rid of it. But perhaps they won't while DADT is still in effect.

The right to a trial by jury does not apply to a millitary prosecution either.

3:46--I hope not either, since the advice came from my boss. Article 31, the Military's Miranda, was enacted 16 years before Miranda. Article I, Section 8, of the constitution is often cited as the reason that Congress/the Courts can make exceptions to how constitutional rights are extended to servicemembers. I was told that Miranda does not apply to servicemembers, and that there is much broader authority for military officials to search on-base property then under the 4th Amendment.

If your analysis was correct, explain how it is that Lawrence v. Texas doesn't mean that DADT is no longer valid, or at the very least, the military's anti-sodomy laws are no longer valid. See, e.g., Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) (DADT); United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004) (three-part test to determine if Art. 125 conviction violates Lawrence v. Texas---3rd part is "Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?" Nice trump card)

The rights are not identical. For example, in the military, they can't start questioning you about a petty theft, and once you are softened up, start questioning you about a murder. Before they question you about any specific crime, they have to read the article that the suspect you of violating aloud.

I wish all criminal defendants had protections as widespread as those in Article 31.

3:15 is full of crap.

And when you're going to wax on about "evolving standards of decency" you ought to include the fact that the Congress just added death penalty for child rape back into the UCMJ.

It matters because it's so recent. If you were talking about evolving standards in 1977 then you were talking about a time with no death penalty. But once it came back you have to reexamine things.

This was a terrible oversight by the court and I hope that Louisiana appeals.

Maybe Obama will write an amicus brief for them, since he thinks that the death penalty should be okay for child rapists.

5:42, of course it was an oversight. But UCMJ punishments tend to be harsher than civilian punishments (and with good reason), and no, regardless of how full of crap you think I am, different rules are okay for the military. See my citation to Marcum at 4:19, and note 3:53's comment that there is no right to a jury trial.

You're just plain wrong if you think the US Supreme Court's determination of civilian rights under the bill of rights are applied wholesale to military personnel. It isn't true.

The UCMJ still permits those who rape adults to be sentenced to death, although it has never happened, (to my knowledge). Coker v. Georgia, which barred executing those who raped adults, was decided on June 29, 1977. But the 2006 amendment provided for the penalty of death for those who raped either adults or children, until the president set the penalty for that section. So either Congress is really dumb, or they don't think the 8th Amendment jurisprudence in Coker applies to the military. See Article 120, 10 U.S.C. s 920.

The congressional enactment here is no more relevant than any state enactment. At the end of the day, Congress, just like the states, can't authorize burning in oil, beheading, or drawing and quartering. It doesn't matter that it represents the national polity, and people that say otherwise simply fail to understand that the Court's indepedent moral assesment of the punishment at issue is the final barometer of constitutionality. Anyone that questions this principle should retake Con Law I. There are just some things beyond the reach of any legislative body....and permitting the death penalty for
non-homicide offenses is one of them. Its ultimatley irrelevant that this was left out. Embarrasing, yes. Jurisprudentially significant, no.

I'm lovin this discussion! Keep it goin guys!