As a policy matter, we're inclined to agree with the result reached by Judge Scalia in District of Columbia v. Heller (as for the correctness of his constitutional conclusion, we don't know - no matter what anyone tells you, it's not an easy question). The reasoning in his opinion, however, is less than perfectly clear - in fact, in two places, we find important contradictions that are difficult to resolve. We may not be able to get to this opinion for awhile, so for now we'll leave you with two questions:
(1) Why doesn't United States v. Miller (an opinion that Scalia criticizes but does not overrule) contoll the outcome of this case?
(2) What effect will this decision have on federal laws that categorically outlaw firearm ownership for certain classes of people? (for example, convicted felons).
BACK TO KENNEDY:
The starting point for our discussion has to be Coker v. Georgia, the 30-year-old decision that everyone agrees is most on point for the child rape law at issue in Kennedy. Coker held that the 8th amendment barred the death penalty for the crime of rape - at least for rape concerning adult women.
(We should note that we have a history with Coker. Six years ago, we authorized a note (available here) published in a certain law review analyzing Coker in some depth. We'd like to say that we took the legal world by storm - but our legacy consists of few cites in a few scattered law reviews (one of which confused us with a professor!) Indeed, the federal courts - culminating with Kennedy - have been quite busy dismantling the assumptions we made in our Note since its publication.)
Coker involved an horrific crime. The defendant, Mr. Coker, was serving time for several violent offenses in prison. He broke out prison, broke into the home a young family, threatened the young wife with a weapon, then raped her with a knife in front of her husband, then stole her car and kidnapped her. He did not, however, kill anyone. Nevertheless, he was sentenced the death penalty after being convicted of this crime.
The court overturned the death sentence by a vote of 7-2. Of the seven judges - two judges (William Brennan and Thurgood Marshall) overturned the death penalty because they believed the penalty was cruel and unusual in all circumstances. One judge, Lewis Powell, thought that the death penalty was disproportionate for this particular rape, but thought it might be OK if there were other "aggravating circumstances" (more on him later). Four other judges joined an opinion by Judge White. Everyone agrees that White's opinion held that the death penalty for rape (at least for adult women) was unconstitutional.
MATH TEST: How many judges agreed with White's opinion - that the death penalty for rape (at least for adult women) was always unconstitutional? The answer is 6 - Brennan (1), Marshall (2), and the four judges who joined White's opinion (3-6 - that's White, Stevens, Stewart, and Blackmun). Brennan and Marshall did not join White's opinion, of course, but that's because they wanted to go farther - to strike down the death penalty for rape and every other crime.
If 5 judges agree on a decision, it constitutes precedent that all courts (including, usually, the Supreme Court) are bound to follow. Here, 6 judges agreed that White's opinion about rape was correct (two didn't join it - but only because they didn't think it went far enough). 4 + 2 = 6. 6 is greater than 5.
All of this, of course, is blindingly obvious - unless you're on the Supreme Court! At oral argument for Kennedy v. Louisiana (available here) not one but two judges suggested that White's opinion was not binding precedent! Note, particularly, Judge Scalia's suggestion that Brennan and Marshall somehow don't count!
To put it a different way - if Brennan and Marshall had joined the majority opinion, there would be an opinion by 6 judges, and everyone (presumbly even Scalia) would have to agree that it was a binding precedent. But because Brennan and Marshall subscribed to a view that was in all ways more restrictive of the death penalty, Scalia suggests they don't count at all - and White's opinion can be ignored.
To be clear, Scalia's (apparent) view appears nowhere in the Kennedy opinion. Indeed, thoughts expressed at oral argument does not always reflect a judges's true views. That said, Mr. Kennedy's lawyer had to spend a fair portion of his argument dealing with these inane issues raised by Scalia (and the other justice, whose name we'll withhold).
NEXT: Coker was not off to a good start with the Kennedy court. We examine what White's controlling opinion in Coker actually said - and what the Kennedy court did with it.