July 6, 2008

The Washington Post says the Supreme Court's mistake requires it to reconsider the ban on the death penalty for rape of a child.

It's absolutely right:
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....

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.
The opinion doesn't cohere as written. The dissenting opinion doesn't cohere. It's an egregious mistake that throws all the reasoning out of whack. Fix it!

ADDED: Has the Supreme Court case ever used the expression "out of whack"? No. The word "whack" only appears once in the Supreme Court's cases, in a one-sentence rejection of jurisdition in a case called Whack v. Maryland, 450 U.S. 990 (1981).

Is it "out of whack" or "out of wack"? If you go by Google hits, you'll think it's "out of wack" — but that's "out of whack." "Wack" means crazy. It's a back-formation from "wacky." As a noun, it means "a person regarded as eccentric." "Whack," as a noun, is a "a sharp, swift blow." I know, it makes little sense to say the reasoning is out of a person regarded as eccentric or out of a sharp, swift blow, but trust me, the standard, idiomatic expression is "out of whack."

Here's some history:
At one time, [whack] could mean a share in a distribution, a portion; this sense was originally thieves’ cant — Francis Grose, in his Dictionary of the Vulgar Tongue of 1785, has “Whack, a share of a booty obtained by fraud” (could physical violence have been involved in some cases?). British English has a couple of phrases that retain that sense. One is pay one’s whack, to pay one’s agreed contribution to shared expenses. Another is top whack, or full whack, for the maximum price or rate for something (“if you go to that shop, you’ll pay top whack”).

There are some other old figurative senses, including a bargain or agreement (which evolved out of the idea of a share), and an attempt at doing something (“I’ll take a whack at that job”). These are mostly American, and it was in the US that the sense you refer to first appeared, in the latter part of the nineteenth century. There seems to have been a phrase in fine whack during that century, meaning that something was in good condition or excellent fettle. (It appears in a letter by John Hay, President Lincoln’s amanuensis, dated August 1863, which describes the President: “The Tycoon is in fine whack. I have rarely seen him more serene and busy. He is managing this war, the draft, foreign relations, and planning a reconstruction of the Union, all at once”.) It doesn’t often turn up in writing, though, so there’s some doubt how widespread it was.

To be out of whack would then have meant the opposite — that something wasn’t on top form or working well.

27 comments:

peter hoh said...

Interesting. Has the Court ever reopened a case on which it had so recently handed down a decision?

Meade said...

Genuine But Inaccurate?

1jpb said...

SCOTUS will make all right in the world! Perhaps they can also take another look at Bush v Gore. Turning back the clock would probably be a good idea with that one (as a bonus "An Inconvenient Truth" would never have been made.)

(And, please no untrue "Bush would have won the recount" talking points.)

Simon said...

It takes five votes to reopen a case, we must ask: who in the majority is going to vote for that? If one of them does, what are the odds that he (for it will not be the she) will actually vote to reverse based on an exceedingly obscure enactment by one more jurisdiction, having previously joined an opinion whose reasoning would reject the weight of one more jurisdiction? And, to complete the circle, if none of the justices from the majority would vote to reverse, what would be the incentive for any of them to vote to rehear it in the first place?

In slighting the "one more jurisdiction" theory, I should explain that, as I said here last week (gosh, I can't believe I've still not posted about this at SF!) the dispositive factor in these cases isn't the objective indicia side of the analysis, in my view, but the court's own judgment. How else do you explain why the dispositive test in Atkins is totally ignored in this case? Far from being "still in search of a unifying principle," the court's decisions in this area have ben entirely consistent, it's just that the principle must be kept sub rosa. The majority offers up empirical indicia as a figleaf, deciding carefully which objective tests to focus on. It then manipulates them to ensure that they can credibly claim the empirical evidence adduced leans in the court's direction but is not by itself dispositive. Thus is created the illusion that the court's discretion is brought in at the last minute to break a tie.

It's a clever trick, because it's eminently manipulable. If the court wanted to come out for the respondent, they can point to the consistency of the direction of change test; if they wanted to come out for the petitioner, they can point to the counting heads test. But the constant in all this is that the test is not to be taken seriously - and so, it seems to me, a petition for rehearing is a pro forma exercise unless any member of the court has changed their mind on child rape.

Moreover, we know that Justices Stevens, Souter and Kennedy believe that "to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question." Planned Parenthood v. Casey, 505 U.S. 833, 867 (1992). Does anyone doubt that Justices Ginsburg and Breyer feel the same about a decision they were in the majority for?

Simon said...

1jpb said...
"SCOTUS will make all right in the world! Perhaps they can also take another look at Bush v Gore."

Feel free to explain how we're with the 25 days allowed by Rule 44 in which Gore could petition for rehearing.

1jpb said...

Simon,

The greater challenge would be turning back time.

Simon said...

1jpb said...
"The greater challenge would be turning back time."

Actually, even if a petition to reopen would still be timely, I fancy that what would happen in a rehearing is that the per curiam opinion would fall by the wayside, and the case would come out the same way but under the reasoning of the Chief's concurrence. I see no reason to assume either that the new Chief would abandon the Old Chief's position or that Alito would sign onto the Kennedy-O'Connor opinion. which is fine by me - I always thought that was by far the stronger ground on which to decide the case and that Kennedy and O'Connor's refusal to go along with the Article II analysis hurt the court's legitimacy. Not that it wouldn't have been attacked, of course, but some of the venom would have been muted.

1jpb said...

Totally excellent dude. Now can you build a time machine?

Bissage said...

(1) Whack fall the daddy, Oh!

(2) And no, that’s not Mike Rowe.

(3) Still . . . NICE LEGS!

(4) Whack!

(5) Whack!!

perry masonmint said...

So -- anybody here used the phrase "nanny state" or "nanny state liberal" yet today?

If so, please let me know so I can taunt you unmercifully..

Thanks!!!

Kirby Olson said...

It's strange because they aren't even doing their job. They base their decision on a "national consensus" that the idiots imagine to have formed, using that as the basis for their own decision.

This is completely backwards. They should all commit seppuku to atone for their rape of the Constitution.

What a bunch of birdbrains.

They are supposed to interpret the Constitution and to settle matters of law by themselves not look to some wafty imaginary opinion.

I'm not an expert on law by any means, but this is so strange.

How do they think that consensus opinions are formed? They are supposed to decide based on the right and wrong of the law, rather than basing their decisions on what's popular at any given moment.

Jesus.

In Luther's day anyone who killed a child was buried underground in a coffin alive.

Everything's out of whack.

The people are now dragging justice by the nose to the drink from the well of public opinion.

Slackers and morons and ninnies everywhere you look.

former law student said...

Congress enacted a death penalty for soldiers who commit child rape, as part of an update to the Uniform Code of Military Justice (UCMJ).

While I appreciate that we're all part of a well-regulated militia, I don't see how my fellow civilians can be subject to the UCMJ, because the militias are an armed force separate and distinct from the standing army.

To be out of whack would then have meant the opposite — that something wasn’t on top form or working well.

Out of whack militia == ill-regulated militia.

vnjagvet said...

The problem with this case is the word the Constitution chooses to describe a forbidden practice.

"Unusual" invites comparison with other punishment practices. Once you decide that the punishment practices to be compared are those of today rather than those of the late seventeenth century, is seems perfectly appropriate to get a sense as to what is "usual". In the US.

While the UCMJ is applcable only to our active duty military personnel, it is an experession of Congressional intent because it is passed by Congress.

If Congress recently has considered it a permitted punishment for active duty troops serving our nation in time of war, shouldn't it be considered "usual" enough for a common Louisiana child rapist to pass Constitutional muster?

P. Rich said...

Kennedy doesn't have the stones to drop his "reasoning" and reverse the majority opinion, and the other four stooges don't have the character.

I heard a rumor that once in 1956 an anonymous liberal said, "I was wrong." But it's only a rumor, and I've been unable to confirm it.

Kirby Olson said...

Jesus, they are like Pontius Pilate to let public opinion decide the matter.

A lot of people on the left don't care about children now. Not only can they be aborted, Peter Singer at Princeton argues they should be abortable until they reach the age of three.

Jesus!

Spread Eagle said...

Note the wording of the 8th Amendment, wherein cruel and unusual punishments are deemed verboten. Cruel and unusual, specifically not cruel or unusual. And. Not or. And. And I know the meaning of the word "and" has been debated, even at the highest levels, but to me this nevertheless obviously means, to not pass muster, a punishment has gotta be both, cruel AND unusual. Not one but both. Cruel by itself is okay. Unusual by itself is okay. But cruel AND unusual, acting together, only then is when it becomes not okay.

And I'm further noting that since everybody sooner or later dies, and it's not really even a punishment for most when they do, well, there you go. And it's definitely not very unusual either.

former law student said...
This comment has been removed by the author.
former law student said...

to not pass muster, a punishment has gotta be both, cruel AND unusual. Not one but both. Cruel by itself is okay. Unusual by itself is okay. But cruel AND unusual, acting together, only then is when it becomes not okay.

By this reasoning, the right to keep arms can be infringed, and the right to bear arms can be infringed. The right to keep AND bear arms cannot be infringed, however.

Revenant said...

What would be the point in revisiting the case? The original decision was bullshit; a revisitation would just hand us a fresh load of bullshit.

Better to wait for some of the old left-wingers to finally die and THEN revisit it.

Revenant said...

How can you infringe on the right to bear arms without also infringing on the right to keep and bear arms?

Spread Eagle said...

Keeping arms and and bearing arms go together, and I'd say they go together necessarily. Not so the concepts of cruel punishments and unusual punishments.

blake said...

SCOTUS will make all right in the world! Perhaps they can also take another look at Bush v Gore. Turning back the clock would probably be a good idea with that one (as a bonus "An Inconvenient Truth" would never have been made.)

(And, please no untrue "Bush would have won the recount" talking points.)


Short 1jpb: I'm going to drop a tired old partisan turd and don't you dare challenge it.

former law student said...

How can you infringe on the right to bear arms without also infringing on the right to keep and bear arms?

Simple: redefine "keep and bear arms" to refer to service in an organized militia, as has been popular among gun control fans for the past half-century.

the concepts of cruel punishments and unusual punishments [do not go together unnecessarily]

Because cruelty is usual, even customary, in our society?

AllenS said...

It's out of sync.

Fen said...

(And, please no untrue "Bush would have won the recount" talking points.)

Okay. Bush DID when the recount, several times. Even when the media went back in to look at it afterwards. Face it, you guys on the Left tried to steal a presidential election and got busted.

1jpb said...

Fen,

Depends how you count. Hence, the untruthiness of the "Bush would have won" mantra. Do you think that voter intent should count the votes where folks punched Gore and wrote in Gore, if so: Bush loses?

http://www.cnn.com/SPECIALS/2001/florida.ballots/stories/main.html

Hook, line, and sinker. Sucker.

blake said...

So, 1jpb, did you stop reading when you got to the part you liked, or when you got to the part you didn't like?