Back when I was in law school, my group of friends would go to lunch together pretty regularly, and we were always on the lookout for a good barbecue joint. One of the guys had a theory that you could tell how good the barbecue was by examining how "human" the pig in the restaurant's logo was acting. I remember one picture of a pig driving a tank, complete with helmet and everything. Now that's pretty human. We concluded, after much study, that the most human thing a pig could be doing in a bbq logo is cooking a pig. That makes sense, right?

Well, maybe we were on to something. Via Jeff from Side Salad's day job blog, The Stew, the exceedingly creepy website Suicide Food. In their words, it contains "any depiction of animals that act as though they wish to be consumed." It's kind of amazing how common this motif is. Enjoy, but ask yourself if this is what we have to stoop to so that we're able to eat those cute but tasty animals.

My favorite image:
As a bonus, a classic "SNL" commercial for "Cluckin' Chicken" that fits perfectly with this theme.

One of the most talked-about and controversial opinions from the just-ended Supreme Court term was Kennedy v. Louisiana, which held that the Eighth Amendment bars the execution of those convicted of child rape. One of the reasons for the Court's decision was what it concluded was a consensus of national opinion against the appropriateness of such executions. Included in this survey was the statement that federal law did not provide for the death penalty in child rape cases. But it turns out that the Uniform Code of Military Justice does allow for the death penalty for child rapers in the military, and that law was passed by Congress just a few years ago.

The United States was not a party to the case, and did not file an amicus brief, and no one caught this provision of the military code. The Justice Department apologized for missing the point. For more coverage and analysis, see SCOTUSBlog here, some posts at Volokh here, the Co-Op here, and from Prof. Berman here.

Louisiana is planning to petition for rehearing, and the Washington Post supports that effort (even though it agrees with the outcome of the case). Rehearings are very rarely granted by the Supreme Court, and most people agree that the existence of a never-used authorization in the military justice code won't affect the Kennedy majority's decision, even if it rehears the case and revises its opinion.

Prof. Berman notes that Supreme Court rules disallow the filing of amicus briefs at the rehearing stage (and that makes sense). But does that mean that the DOJ can do nothing besides offer its press release?

I think the United States is able to intervene as a party to the case.

Title 28, Section 2403(a), of the U.S. Code provides for intervention:

In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

Let's break this down a little.

First, the Supreme Court is "a court of the United States." See 28 U.S.C. sec. 451.

Second, the provision in the UCMJ was passed via an Act of Congress, the National Defense Authorization Act for Fiscal Year 2006.

Third, although the DOJ did not quite admit the UCMJ provision was now a dead letter in its statement regarding the missing cite in Kennedy, it seems clear that the constitutionality of the federal law has clearly been "drawn into question," at the very least.

So, the Supreme Court should, on its own, notify the Attorney General of the precariousness of the federal law. Of course, if it had known it was calling the law into question, presumably it would have mentioned it in the opinion! Still, I think we can assume the A.G. knows about the issue by now.

Therefore, if it wants to, the DOJ can intervene in the case, and the Supreme Court is required to allow it ("shall permit"). It seems as if, at a minimum, intervention would allow the DOJ to submit a brief on the issue.

But the notable element here is that intervention is not amicus status; when the U.S. intervenes under Section 2403, it has all the rights of a party to the case -- including, I imagine, the right to petition for rehearing.

A few related thoughts. I suppose it's possible that, if the DOJ tried to intervene now, the Court could say it's too late. Although the intervention statute does not contain a time limit, I doubt it would be read to trump jurisdictional rules. The statute says that the right to intervene is otherwise "subject to the applicable provisions of law." The U.S. couldn't intervene after an appeal period has run and file an untimely notice of appeal and re-animate the case, for example. The U.S. can't intervene in a case that's final.

I don't know if the Court would consider the rehearing stage too late, when the DOJ could have intervened at the cert stage. It could be deemed to have waived its right to intervene by not invoking it at the earliest opportunity. Maybe the equitable doctrine of laches would apply, if the Court felt the U.S. "slept on its rights." In any event, I'm not certain the U.S. would be allowed to intervene at this late date, despite the "shall permit" language of the statute. But I think the best reading of the statute would allow for intervention here.

(A wonky bit of an aside here, to note that the cert stage actually was the earliest time the U.S. could have intervened under Section 2403. Prior to that point, the case was not in "a court of the United States" -- it was in state court. I don't know if Louisiana law allows for federal intervention. If it does, the U.S. could have jumped in sooner, but it wouldn't have been pursuant to federal law. I can muse about all kinds of messes that might arise if, say, the U.S. wanted to initiate action in federal court, for example under the Declaratory Judgment Act, or Rooker-Feldman, or collateral estoppel, but I'll leave that for someone's Federal Courts final exam.)

Finally, the possibility of intervention here puts the DOJ and the Solicitor General's Office in tight spots. Certainly the most likely outcome, whether the U.S. intervenes or not, is that the Court will deny rehearing without comment. The next-most-likely outcome is granting rehearing for the purpose of editing the opinion, but without making any substantive change to the outcome. I would wager that the prospect of the Court even granting full briefing on the significance of the UCMJ provision is exceedingly remote, and I'll eat my shoe if the Court flips the outcome of the case.

So, the SG would be in the awkward position of simultaneously muscling into an essentially final case while admitting it screwed up, all in the service of an almost certainly losing cause. Not enviable. And so my prediction is that the United States will not seek to intervene and file for rehearing.

Ultimately, I think that's a defensible position. The interest of the federal government here is probably not as great as the interests of the states. The DOJ has limited resources, especially considering that the SG's Office is currently a little short-handed. The U.S. does not intervene (or even file amicus briefs) in every case it could; there's nothing wrong with picking one's battles. But this is an election year, and there is also a political component to all this, as Prof. Berman highlights. Would not intervening amount to acquiescing to the Court's opinion? Is not intervening tantamount to agreeing the Court was right?

If Solicitor General nominee Greg Garre gets a confirmation hearing, I wonder if any Senators will ask him why the U.S. didn't intervene in Kennedy, especially if he states that he disagreed with the decision.

I decided my reviews would never catch up with my reading if I forced myself to do full reviews of the last few books I read. So, herewith, a few thoughts on the following books. If you want to know more about any of them ask away in the comments.

11. Money Shot by Christa Faust. This is from the "Hard Case Crime" pulp novel series. I had read one or two others, and this one was the most enjoyable yet. A former porn star turned talent director is coaxed into one last shoot, but of course it turns out to be a double-cross and the start of a deadly cat-and-mouse. Shorter: If Jackie Brown had been about porn. Fun.

12. The King of Lies by John Hart. Very good. A struggling Southern lawyer is suspected when his father (a successful Southern lawyer) turns up dead. The mystery plot is well-done, but what really makes the book a stand-out is the character development and exploration of the family secrets that have led the characters to this point. Compares very favorably with the classic of this genre, Scott Turow's Presumed Innocent. I'm looking forward to reading Hart's follow-up Down River.

13. Criminal Paradise by Steven M. Thomas. Pleasant beach reading. Another minor-caper-turns-into-major-one story. The (anti)hero is likable, and the book is useful for a few tips on breaking and entering. Not essential reading, but worth waiting for the paperback and reading on an airplane sometime.

14. Class 11: My Story Inside the CIA's First Post-9/11 Spy Class by T.J. Waters. I wanted to read this one in conjunction with Legacy of Ashes. I was curious about the insider's perspective. We don't get a lot of big picture thinking, aside from how badly the recruits personally want to kill bin Laden. Some interesting tidbits about training on "The Farm," but of course a lot of details are classified. Skippable. Only worth reading if you're interested in joining the CIA and want to convince yourself it's the right decision, or if you're already in the CIA and want to read a love letter.

15. The Fortune Cookie Chronicles: Adventures in the World of Chinese Food by Jennifer 8. Lee. Don't read on an empty stomach. Or read a chapter and get hungry for another in an hour. I could go on all day. Actually, it was enjoyable and edifying book. It's puffed up a little by Lee's search for the "greatest Chinese restaurant in the world," but still worth it. I especially enjoyed the journey to the real General Tso's birthplace. There are meatier chapters on human smuggling and immigration (and migration, like when a Chinese family from New York takes over a restaurant in rural Georgia). The book is tied together by Lee's search for the origin of the fortune cookie. Spoiler: it's not Chinese.

(Previous 50 Book Challenge reviews)

Legacy of Ashes: The History of the CIA by Tim Weiner (Amazon, B&N, Powell's). Easily one of the best books I have ever read. This is a magisterial study of the CIA, from its birth in the WWII secret services to its post-September 11 demise as the intelligence agencies were melded together. Along the way, we learn of more failures than successes, but both are woven into America's post-war history deftly.

I'll get a minor flaw out of the way. Weiner provides a ton of detail about every little coup and insurgency the CIA participated in during the '50s and '60s. Most of that reporting was based on newly-declassified documents. I wondered what he was going to do with recent history, since the truth behind those events are still walled off. To some extent, he gets around that with lots of interviews (on the record) with relevant actors. But, aside from a highlight with the Iran-Contra mess, the post-Watergate events seemed a tad hurried over.

But in a book this massive and well-researched, that's really a minor quibble. A part of the reason for it is that the Agency was so lost right after the Cold War, and was clearly unsure of its mission. And there's plenty of meat in the rest of the sixty years covered by Legacy of Ashes (a prophetic phrase from President Eisenhower). The most compelling part of the work is probably the CIA's many attempts to overthrow Fidel Castro, and the possible link between those activities and Cuban retaliation in the form of the assassination of President Kennedy. Spooky stuff.

The Agency's efforts in the Middle East receive much attention from Weiner, deservedly so. It's amazing how much history repeated itself. But that's really the main theme of the book -- the CIA's utter inability to learn, either about its targets or from its mistakes. (And oh my goodness, how many times did the Soviets know exactly what we were doing?!) Ultimately, it's depressing. But it's absolutely essential reading for anyone interested in American history, politics, or intelligence.

(Previous 50 Book Challenge reviews)