Home -> Law Blog Directory -> Miscellaneous Blogs -> Begging the Question

Miscellaneous

: Begging the Question

The Solicitor General Cops Out in Kennedy

By "Milbarge" and "Fitz-Hume"

I'm disappointed with the approach taken by the Solicitor General's Office in the ongoing Kennedy v. Louisiana child rape death penalty case rehearing matter. For background, see my posts here and here. The short version is that Louisiana sought rehearing, and there was some curiosity about what action the United States, in the form of the Department of Justice and Solicitor General's Office might take. After all, the late-discovered military law permitting the death penalty for child rape means that the Court's holding directly affected a federal law. Having sat out the cert and merits stage, would the SG be drawn in at this late date?

In my first post, I discussed the rule in 28 U.S.C. sec. 2403, which allows the U.S. to intervene in any case in a federal court where the constitutionality of a federal law has been called into question. That provision seemed to fit perfectly what happened in Kennedy. So naturally, I wondered if the SG would seek to intervene in the case (a) to make rehearing more likely, and (b) to defend the federal statute at issue.

In my second post, I discussed the state of Louisiana's rehearing petition. I noted that it specifically cited section 2403 and served a copy of the petition on the SG (although, of course, the SG was already aware of what was going on). The petition seemed to be all but asking the U.S. to wade in.

On Monday, the other shoe dropped. As reported by Lyle Denniston at SCOTUSBlog, the SG has moved for leave to file an amicus brief in support of the rehearing petition (pdf). (Interestingly, the submission seems to have been filed shortly after Monday morning's orders list, making me wonder if the SG thought rehearing would be denied this morning before it had to submit anything.) And while it's certainly notable that the U.S. has finally weighed in on Louisiana's side, I found the motion much more interesting for what it did not say.

To begin with, although the motion is for leave to file an amicus brief at the rehearing stage, and the brief itself is styled as such, at no point does the SG's proposed brief acknowledge that Supreme Court Rule 44.5 clearly states that "The Clerk will not file any brief for an amicus curiae in support of, or in opposition to, a petition for rehearing." (Thanks to Prof. Berman for originally noting this.) In other words, by rule, the Supreme Court Clerk should stamp the SG's submission "return to sender."

In reality, I find it well nigh inconceivable that the Justices won't at least be aware of the SG's position, and they will probably read the proposed brief anyway, even if it's not officially lodged in the record. But I find it troubling, to say the least, that the brief does not ever point out that its very filing is prohibited by rule. I think that a more intellectually honest brief would have addressed Rule 44.5 in some fashion.

To me, what's confusing about all this is that there is a reasonable argument the SG could have made to get around Rule 44.5: It could have, as I noted, moved to intervene in the case. In my original post, I pointed out some reasons why the Court might deny permission to intervene, but at least the SG would be on marginally surer footing -- it would be submitting its brief not as an amicus, but as a party.

The most logical deduction I can draw from all this -- not mentioning either Rule 44.5 or the only way I can see to avoid it -- is that the motion is political posturing, and the SG doesn't really want to get too involved in the case. (And as a bonus, the SG can act as if the Court is obstinately ignoring the facts when it's simply applying its rules in an evenhanded manner.)

Acting Solicitor General Greg Garre should fish or cut bait -- either acknowledge that Rule 44.5 prevents filing an amicus brief and leave it at a press release, or move to intervene and accept the responsibility of being a party to the case.

Full post as published by Begging the Question on July 29, 2008 (boomark / email).