Justice Dept. makes Supreme error

It’s never too late to admit a mistake—particularly someone’s else mistake.   

Bush administration lawyers took the unusual step today of telling the Supreme Court that one of its recent decisions was “erroneous” and “tainted” and therefore deserved to be reconsidered.      

Now you tell us, since the error arose at the Justice Department.

On June 25, the justices struck down a Louisiana law on the death penalty for child rapists, saying in a 5-4 ruling that the death penalty was cruel and unusual punishment for crimes that did not involve murder.

The court’s opinion failed to note that the Uniform Code of Military Justice was revised in 2006 to authorize the death penalty for soldiers who are guilty of raping a child. The court didn't mention the military code because the U.S. solicitor general's office, which advises the court on all cases and is supposed to inform the justices of all pertinent federal statutes, never pointed it out.

In a 12-page brief, Gregory Garre, acting solicitor general, acknowledged the slip-up. "The United States regrets that it did not" notify the court of the recent change in the military code, he said.

But the rest of his 12-page brief was devoted to arguing why the court should reconsider its "incorrect" ruling. Noting that the error "undermines the foundation" for the court's ruling, Garre argues that a new hearing will “ensure that a decision of exceptional constitutional, moral and practical consequences is not tainted by a significant omission.”

It is still a long shot for Garre and Louisiana’s lawyers. Requests for a re-hearing at the high court are rarely granted. The justices may not act on the unusual request until October.

-- David Savage

Photo: Paul J. Richards / AFP /Getty Images