The Supreme Court Can't Ignore the Facts

See prior articles here and here and here and here.

8-9-2008 National:

In the recent case of Kennedy v. Louisiana, the Supreme Court held 5-4 that the Eighth Amendment's prohibition against "cruel and unusual punishments" barred Louisiana from imposing the death penalty for the rape of an 8-year-old child.

The court perceived that there was a "national consensus" against the death penalty for child rape, concluding that capital punishment for this crime was inconsistent with "the evolving standards of decency that mark the progress of a maturing society." This supposed consensus, according to the court, was based on the fact that 44 states have not made child rape a capital offense; it also observed that while the federal Death Penalty Act of 1994 expanded the number of federal crimes punishable by death, it did not do so for child rape.

But the factual basis of the ruling was in error. The court overlooked the amendment to the Uniform Code of Military Justice -- passed by Congress and signed into law by President Bush in 2006 -- which imposed capital punishment for child rape. So much for the national consensus.

On July 21, Louisiana filed a petition for rehearing. Will the Supreme Court grant such a request? It has in the past.

Fifty years ago, in Flora v. United States, the court considered whether a taxpayer could bring a tax-refund suit in a federal district court if he did not first pay all of the taxes sought by the Treasury. Initially, the Court held 8-1 (with a short dissent by Justice Charles Evans Whitaker) in favor of the government, that full payment was required.

The Court relied upon its understanding that there was no case in which a taxpayer attempted a refund suit without paying the full amount the government alleged to be due. It was wrong. Tax lawyers around the country soon came forward and reported that they had brought such refund cases. The taxpayer, Walter Flora, thereupon sought a rehearing.

The Court granted the rehearing, and Justices Felix Frankfurter and John Marshall Harlan switched their votes, making the rehearing vote 5-4. They, together with the newly-appointed Justice Potter Stewart, joined Justice Whitaker's expanded dissent after the rehearing.

While the court ultimately upheld its initial decision, Justice Frankfurter's separate opinion has particular resonance with Kennedy v. Louisiana. "Once the basis which for me governed the disposition of the case was no longer available," he wrote, "I was thrown back to an independent inquiry of the course of tax legislation and litigation for more than a hundred years, for all of that was relevant to a true understanding of the problem presented by this case." He added, "This involved many weeks of study during what is called the summer vacation."

The five justices in the majority in Kennedy v. Louisiana should consider Justice Frankfurter's words -- and spend at least a part of their summer vacation reconsidering the basis of their decision. ..News Source.. by STUART A. SMITH. Mr. Smith, an attorney in New York City, was tax assistant to the Solicitor General in the Department of Justice from 1973 to 1983.