Dwight Sullivan, a colonel in the Marine Corps Reserve, has some crowing rights this week. He found a serious factual error in the majority opinion barring the death penalty for child rape defendants — a flaw that was missed by both the majority and dissenting justices in Kennedy v. Louisiana as well as all of the attorneys in the case. The error was flagged by Sullivan on CFlog.

In deciding last week that the execution of child rapists offends the “evolving standards of decency” of the country, Justice Anthony Kennedy relied on the fact that one six jurisdictions allowed for such punishment — and not the other 30 states with the death penalty or the federal government. For a copy of the opinion, click here. It turns out that recently that changed with regard to the federal government. As Mr. Sullivan pointed out,
Congress added the such punishment in National Defense Authorization Act for Fiscal Year 2006. None of the attorneys for either side or any amicus caught the change. Nor did the dissenting justices.

Sullivan’s posting “The Supremes Dis the Military Justice System” can be found here.

Louisiana may now seek reconsideration. However, beyond a correction to the case, I do not believe that it would change the outcome. There is no question that the fact is material. Not only does it show that there is a large group of jurisdictions with this penalty, but that the change was recent — undermining the claim of a trend against the use of the punishment. However, it seems doubtful that this one fact would have changed the views of Justices Stevens, Ginsburg, Breyer, or Souter. After all, this still represents a very small minority of jurisdictions –even with the addition of the military. As for the swing voter and author, it is doubtful that it would have changed the view of Justice Kennedy.

This not the first time that facts relied upon by the Court have proven false. Indeed, a far more serious flaw was found in the Reynolds case where the Court established the military and state secrets privilege. At the time, many argued that the Air Force was lying about the classified information in the case and the risk to national security. The Supreme Court ignored these claims and rendered its decision creating the doctrine. Recently, material surfaced that showed that the Air Force had indeed misrepresented the facts to the Court, but when asked to reconsider the ruling, the Court refused. For a discussion of the Reynolds controversy, click here.

Of course, this term has not been error free with a mistake in Justice Scalia’s rendition of the provisions of the law in the Heller case on gun rights, click here.

For discussion of the issue, click here.