Evan Lee Guest

Posted Fri, December 11th, 2020 2:00 pm by Evan Lee The Supreme Court on Thursday unanimously reinstated the rape convictions of three former servicemen in United States v. Briggs and two consolidated cases.

This article is part of a symposium on the jurisprudence of Supreme Court nominee Amy Coney Barrett. Evan Lee is a professor of law emeritus at UC Hastings College of the Law in San Francisco. Of the 21 criminal law opinions Judge Amy Coney Barrett has published while on the U.S. Court of Appeals for the 7th Circuit, seven were in favor of the defendant and 14 in favor of the government. It’s a small body of work, suggesting caution about drawing broad conclusions.

During Tuesday’s telephonic oral argument in United States v. Briggs, counsel for both sides urged the justices to avoid deciding whether the Eighth Amendment ruling in Coker v. Georgia, prohibiting capital punishment for nonhomicide rape, applies to the military. But it isn’t clear whether five justices can agree on the statutory argument of one side or the other, suggesting that it is still possible the court will reach the constitutional issue.