After Justice Kennedy issued the opinion in Graham v. Florida, relying on the “national consensus” model of 8th Amendment jurisprudence, I remarked:

I often joke that I became a lawyer because I couldn’t do math. I guess I’m not the only one.

Well looks like SCOTUS made another counting mistake.

From the BLT:

In an unusual filing with the Supreme Court this week, Acting Solicitor General Neal Katyal said some of the information that the Court used in its recent Graham v. Florida decision, supplied to the Court by a federal official without the SG’s knowledge, was inaccurate.

The May 24 letter to Court Clerk William Suter, obtained by the Blog of Legal Times, clarifies the information that led Justice Anthony Kennedy to write in his majority opinion that “there are six convicts in the federal prison system serving life without parole sentences for [juvenile] non-homicide crimes.” In the ruling, Kennedy had indicated that because Florida did not provide data about the number of juveniles sentenced to life without parole in the state and federal systems, the Court set out on its own to find out accurate information. Kennedy cited letters sent by officials in Nevada, Utah, Virginia, and the federal Bureau of Prisons to the Court library filling the information gap.

Katyal’s letter focused on the information submitted by Bureau of Prisons in its letter, “of which this office became aware only upon the release of the Court’s decision,” and which was “submitted in response to a confidential request from Court personnel.”

Katyal said that because of “time constraints,” the number of six federal prisoners was arrived at by consulting “automated inmate records,” rather than presentence reports and other documents. Since the decision came down, Katyal said a “careful review” of presentence reports was conducted, leading to the conclusion that “it appears that none of the six inmates listed … is serving a life sentence  based solely on a nonhomicide crime completed before the age of 18.” Katyal explained that all of the inmates cited by the Bureau of Prisons were convicted for criminal conduct that continued after they reached 18, or involved killing someone.

In other words, the Supreme Court, on its own initiative petitioned the Bureau of Prisons for information regarding the number of inmates serving sentences of life without parole for juvenile non-homicide crimes. The BOP did not inform the SG’s office, and provided SCOTUS with inaccurate information.After the opinion was issued, Katyal double checked, realized the BOP was wrong, and issued this letter to the Court.

A few comments.

First, what right does the Court have to petition parties for information that was not briefed? This is not a civil law country where the Judge becomes the finder of fact. Rather, Judges should determine questions of law, and on appeal, determine whether the lower court was correct.  Is this common for Courts to look outside the record, and actually ask for info? I always get irked when SCOTUS appoints counsel when the parties are no longer interested in litigating a case. What authority do they have to do so? Oh well. In the words of Mel Brooks, “It’s good to be the king.”

Second, this further proves the flaws of the national consensus model of 8th amendment jurisprudence. In two consecutive HUGE 8th amendment cases, the Court made fundamental counting errors, that impacted huge questions of constitutional law.

Along with Ilya Shapiro, I have written about the fallacy of national consensus in Pandora’s Box in the context of Kennedy v. Louisana, another opinion written by Justice Kennedy.

If the Supreme Court could not properly analyze the extent of the consensus among state laws governing the sentencing of child rapists, an area that any first-year law student could understand with the proper Lexis search, how can we expect judges to understand consensuses on nebulous and polarizing social issues—on which public opinion ebbs and flows—such as the right to health care,164 the right to education, or reproductive rights?

Moreover, what constitutes a national consensus? Half the population? Two thirds? Ninety percent? To paraphrase Justice Brennan’s quip, why not whatever five duly confirmed justices think?168 Should the Court commission its own Gallup Poll? What standard should the consensus be based on? How long should it exist? These are inherently subjective determinations, not reducible to judicially or legislatively manageable standards.

If the Court cannot ascertain such a simple piece of information, how can we possibly expect this model to be anything more than mere window dressing?

Third, and perhaps most importantly, this brings to the fore the fact that the Supreme Court makes mistakes. Kudos to Katyal for making this correction. But I wonder how many other errors are made by the Court in their attempts to elucidate the law and rule on big issues. Think back to Kennedy v. Louisiana. The Court’s mistake only came to light following a blog post! I am glad this admission of error comes from the Government and not the Internet.

Now, will the Court issue a new opinion, noting that this error was de minimis, like they did with Kennedy v. Louisiana? Perhaps we will have another opinion from Justice Thomas.

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