Loving v. United States
Decided on June 3, 1996, 517 US 748


I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Separation of powers, death penalty

B. Legal Question Presented:

Does the President have the authority, consistent with the separation-of-powers principle, to prescribe aggravating factors that permit a court-martial to impose the death penalty upon a member of the armed forces convicted of murder?

II. CASE SUMMARY:

A. Background:

"A general court martial found petitioner Loving, an Army private, guilty of both premeditated murder and felony murder under Article 118 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 918(1),(4). Finding... aggravating factors [pursuant to Rule for Courts Martial (RCM) 1004]... the court martial sentenced Loving to death. The commander who convened the court martial approved the findings and sentence. The United States Army Court of Military Review and the United States Court of Appeals for the Armed Forces affirmed, rejecting Loving's attack on the promulgation by Executive Order of the aggravating factors in RCM 1004. He contends that the Eighth Amendment and the separation of powers doctrine require that Congress, not the President, make the fundamental policy determination respecting the factors that warrant the death penalty."

On appeal the US Supreme Court affirmed the judgment of the US Court of Appeals for the Armed Forces.
B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Ronald W. Meister, Steven R. Shapiro, and Diann Y. Rust-Tierney filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.

John H. Blume argued the cause for petitioner. With him on the briefs were Teresa L. Norris, Roy H. Hewitt, Fran W. Walterhouse, and Walter S. Weedman.
Deputy Solicitor General Kneedler argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Miguel A. Estrada, and John F. De Pue.


IV. THE SUPREME COURT'S DECISION:

"Separation of powers principles are vindicated, not disserved, by measured cooperation between the two political branches of the Government, each contributing to a lawful objective through its own processes. The delegation to the President as Commander in Chief of the authority to prescribe aggravating factors was in all respects consistent with these precepts, and the promulgation of RCM 1004 was well within the delegated authority. Loving's sentence was lawful, and the judgment of the Court of Appeals of the Armed Forces is affirmed."

The US Supreme Court affirmed the judgment of the US Court of Appeals for the Armed Forces.

Justice Vote: 0 Pro vs. 9 Con

  • Kennedy, A. Con (Wrote majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Breyer, S. Con (Joined majority opinion)
  • Ginsburg, R. Con (Joined majority opinion)
  • Souter, D. Con (Joined majority opinion)
  • Thomas, C. Con (Wrote concurring opinion)
  • O'Connor, S. Con (Joined concurring opinion)
  • Stevens, J. Con (Wrote concurring opinion)
  • Scalia, A. Con (Wrote concurring opinion)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU, as amicus curiae, urged reversal of the Court of Appeals' judgment; the Supreme Court affirmed in a 9-0 vote, giving the ACLU an apparent loss.