In cases raising common law questions (or questions under uniform laws such as the UCC), it’s become very common (and often expected) for litigants in the Texas Supreme Court to conduct a “fifty state survey” of the relevant area of law. The Justices have even been known to request them to be filed in post-submission briefs when the litigants haven’t yet provided one.

The amount of work it takes to create an accurate fifty-state survey is hard to overstate. In statutory areas, different states have different quirky ways of wording things that make using online research tools very difficult. In common-law areas, those nomenclature problems are even worse. Lawyers are licensed state-by-state for a reason, and trying to make sense of all fifty at once is a real challenge — one that, for its tediousness, seems to be passed as far down the food chain of law firms as possible, often falling to interns and law clerks. Perhaps these surveys deserve more serious attention than they have traditionally received.

Because of its unique role, the United States Supreme Court has less need to look at fifty-state surveys. But in the recent Kennedy v. Louisiana child-rape case, the Court not only mentioned such a survey but based much of its reasoning on the idea of a “national consensus” having formed that capital punishment was in no circumstances appropriate for child rape.

It turns out, the Court messed up the count. The Court said that it had looked at all 50 states and at federal law, finding that “only six” jurisdictions permitted the death penalty for such an act. The Court counted federal law in the “no” column. But, as a military blogger pointed out (and the New York Times noticed, followed by several blogs in my feed, such as Volokh and Tyler Appeals), Congress actually did pass a bill in 2006 placing just such a provision in the Uniform Code of Military Justice. Oops.

Three things are worth noting.

First, it really is difficult to do a fifty-state survey. That echoes a point made more eloquently by others, but it’s worth saying again. Even Kennedy’s lawyers should have caught this statute and presented it to the Court, especially if they made representations in their brief about there being no such law. But no one saw it tucked away in an area of federal law in which none of them happened to practice.

Second, this particular error is huge. It’s not as if the Court misclassified Wyoming or Texas. The framework of the Court’s analysis was looking for national “consensus,” and in that sort of test, surely the national legislature represents at least one species of national consensus. (( If your gut is saying, “Isn’t it a little circular to look at legislative enactments to measure constitutional boundaries when those constitutional boundaries are meant to constrain the legislature?,” my gut would agree. )) Saying this error just makes it “seven” instead of “six” jurisdictions is a category mistake; the misclassified jurisdiction contains all the others. And this bill passed overwhelmingly. (( It looks to me like the bill permitting the death penalty for child rape under the UCMJ passed the Senate 98-0 before it was sent to conference committee. Depending on how you think about the two abstentions, that would be either 48 or 50 states in favor. The House vote was closer, but still overwhelming (374-41). ))

The Court could have reached the same ultimate constitutional result even knowing what Congress had done. The Eighth Amendment is, after all, a very pliable thing, and the Constitution does trump statutes. But the Court would have had to confront that it wasn’t just scolding States it sees as retrograde; it was also striking down a fairly fresh federal statute.

Third, the most disturbing thing (at least to me) is that the pundits seem in agreement that a rehearing petition would be futile, even though this error made by the Court is both incontrovertible and goes to the heart of the Court’s reasoning. There seems to be no public confidence that the Court actually meant what its reasoning said and, instead, widespread belief that the decision was just a rationalization for a predetermined result. If that’s why Louisiana doesn’t file a petition for rehearing, that says something more than a little sad about the state of the federal courts.

Question: Would the five Justices in the majority actually welcome a petition for rehearing in this case to at least correct this part of their reasoning, or are they content to have a major constitutional case decided on a demonstrably false premise?


Update #1: The U.S. Solicitor General’s office, which did not file a brief in Kennedy, has accepted a measure of responsibility for not locating that statute and notifying the Court. This is a nice illustration of the special role the SG’s office sees for itself in relation to the Supreme Court. It also shows the benefits to the SG’s office of such a relationship; the office was able to weigh in with its views on this question, even as a non-litigant, at a phase when only parties can file rehearing motions. (( The SG’s statement also suggests a way that the Court might find the UCMJ provision distinguishable and thus still valid even after Kennedy, noting a previous Supreme Court case that did not resolve whether the Eighth Amendment applied with full force to military punishments. ))

Update #2: On Saturday, the Washington Post editorial board called for the Court to rehear the case:

The Supreme Court’s legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That’s why we think the court needs to reopen this case — even though we supported its decision. The losing party, Louisiana, still has time to seek a rehearing, which the court could grant with the approval of five justices, including at least one from the majority. The court could limit reargument to briefs on the significance of the UCMJ provision. We doubt the case will come out much differently; we certainly hope not. But this is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.