When Judges Don’t Know Everything by Linda Greenhouse
Last edited Thu Oct 31, 2013, 01:29 AM - Edit history (1)
A name familiar from a 2008 Supreme Court death penalty case was back in the news the other day. A federal district judge in New Orleans granted a new trial to Patrick Kennedy, convicted in 2003 of brutally raping an 8-year-old girl. He has been serving a life sentence in a Louisiana prison, spared the death penalty by a Supreme Court ruling that capital punishment for the rape of a child, unaccompanied by murder, violates the Eighth Amendment’s prohibition of cruel and unusual punishment.
Justice Anthony M. Kennedy’s majority opinion placed the emphasis on “unusual.” Only five states in addition to Louisiana made the rape of a child a capital offense, he noted, adding that when Congress last revisited the federal death penalty, in the mid-1990s, it failed to add child rape to the list of federal capital crimes. Capital punishment for the rape of a child was contrary to society’s “evolving standards of decency,” the majority concluded.
It was a high-profile case that divided the justices 5 to 4. But the ink was barely dry on the decision, Kennedy v. Louisiana, when it emerged that the court’s factual premise for taking the defendant off death row was, to put it charitably, incomplete. Standards weren’t evolving in only one direction, it turned out. Less than two years earlier, Congress had in fact added child rape to the list of capital offenses in the military justice system.
How could the justices not have known this? Simple: no one told them — not Louisiana, which vigorously defended its law; not the other states that supported Louisiana’s argument; and not the federal government, which didn’t even file a brief in the case. The court and all the parties to the case were embarrassed. Would the knowledge have made a difference to any of the five justices in the majority, changing the outcome? Probably not, but who knows? Louisiana asked the court to reconsider its decision, but the justices turned the state down, acknowledging the late-discovered fact in a new footnote while dismissing it as irrelevant. The defendant subsequently filed a new federal court appeal, renewing an earlier challenge to the makeup of the original grand jury that indicted him in 2001. Two weeks ago, federal District Judge Helen Ginger Berrigan gave the state 180 days to either re-indict Mr. Kennedy or release him.
I can’t help thinking about the Louisiana case, with its missing fact, in conjunction with the current contretemps over a single sentence in Judge Richard A. Posner’s latest book, “Reflections on Judging.” In what Judge Posner now says he considered little more than an “entirely innocuous” throwaway line, he wrote that “I plead guilty to having written the majority opinion” for his appeals court rejecting a constitutional challenge to Indiana’s voter-identification law. . .
“By self-awareness and discipline, a judge can learn not to allow his sympathies or antipathies to influence his judicial votes – unduly. But the qualification in ‘unduly’ needs to be emphasized. Many judges would say that nothing ‘outside the law,’ in the narrow sense that confines the word to the texts of formal legal documents, influences their judicial votes at all. Some of them are speaking for public consumption, and know better. Those who are speaking sincerely are fooling themselves.”
http://www.nytimes.com/2013/10/31/opinion/greenhouse-when-judges-dont-know-everything.html?hp&rref=opinion
