Supreme Slip-Up

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Saturday, July 5, 2008

WHEN A NEWSPAPER gets its facts wrong, it's supposed to publish a correction, and, if someone's reputation has been harmed, a retraction and apology. It can be embarrassing, but the occasional taste of crow probably does more good than harm to the media's credibility.

But what if the Supreme Court not only blows a key fact but also bases its ruling, in part, on that error? There was quite a goof in the court's 5 to 4 decision on June 25 banning the death penalty for those who rape children. The majority determined that capital punishment for child rape was unconstitutional, in part because a national consensus had formed against it. As evidence, the court noted that "37 jurisdictions -- 36 States plus the Federal Government -- have the death penalty. [But] only six of those jurisdictions authorize the death penalty for rape of a child." Actually, only two years ago, Congress enacted a death penalty for soldiers who commit child rape, as part of an update to the Uniform Code of Military Justice (UCMJ). Irony of ironies: The court has cast doubt on the constitutionality of an act of Congress based on the erroneous claim that the statute did not exist.

This is not the court majority's fault alone. In his dissent, Justice Samuel A. Alito Jr. did not spot the error. Neither party in the case -- the state of Louisiana and convicted rapist Patrick Kennedy -- raised it. Nor was it mentioned in 10 friend-of-the-court briefs on both sides. The Justice Department, which normally weighs in on cases affecting federal statutes, has admitted that it should have noted the 2006 law. (Blame the media, too; only after a legal blogger, Col. Dwight H. Sullivan, had pointed out the mistake did a newspaper, the New York Times, take note.) The UCMJ change was quietly tucked into a huge defense authorization bill. Still, it passed both houses and President Bush signed it, so it enjoyed the same presumptions of validity and constitutionality as any other law.

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.


© 2008 The Washington Post Company

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