If You Think Monday Was Bad at the Supreme Court ...

By Andrew Cohen

Jun 26 2012, 10:47 AM ET  ...you're in for a good show. Yesterday's gulf of opinions on the juvenile-sentencing case is just a warning tremor for the deep fractures that are sure to divide the Court on Thursday.
 
Left: AP; Right: Reuters
So this is what Justice Ruth Bader Ginsburg alluded to a few weeks ago when she said that the current United States Supreme Court term was "more than usually taxing" because of its blend of deep ideological division mixed with a politically charged docket. As we wait for the term's final day on Thursday, a day of drama the Court has not seen since Bush v. Gore on December 12, 2000, get a load of the seething tone of some of the dissents written and read Monday in cases involving immigration and prison sentencing.

By 10:30 a.m Monday, with the health care ruling on hold, the big decision everyone wanted to talk about instead was Arizona v. United States, an election-year case about states' rights and federal immigration policy. By a 5-3 vote, the Court struck down three of Arizona's controversial measures and limited the scope of the fourth. In dissent, Justice Antonin Scalia wondered aloud whether we should, as a result of Justice Anthony Kennedy's majority opinion, "cease referring to [Arizona] as a sovereign state."

Folks, this is how fellow Reagan appointees were ragging on each other's work Monday. Meanwhile, in the only other decision of the day, a case in which the Court by an even closer 5-4 vote banned mandatory life sentences for juvenile offenders, the Court's conservatives were free to unleash themselves upon the newest justice, Elena Kagan. The Obama appointee wrote the majority opinion in Miller v. Alabama with the help of the aforementioned Justice Kennedy.

The bad vibe was so pronounced in court on Monday, as the justices were reading various portions of their rulings, that Dahlia Lithwick, over at Slate, suggested (jokingly, I think) that cameras inside the courtroom perhaps aren't such a good idea after all. Here's my latest bright idea: If the Supreme Court broadcast Thursday's announcement of its decision over the Affordable Care Act, and if it made the broadcast Pay-Per-View, perhaps the national debt and deficit could be wiped out in a single hour.

KIDS AND CRIME

It is a shame on many levels that Miller came down on a day when it was overshadowed by other news from the Supreme Court. For in Miller v. Alabama, we see both the clear continuation of a trend on the Court -- and the passing of a torch. Even though Justice Kagan wrote the majority opinion in Miller, it was largely Justice Kennedy's precedent that she was following. More than that, it was Justice Kennedy (as senior member of the majority) who assigned the opinion to Justice Kagan to write.

Justice Kennedy is central to this story because he's literally written the law upon which Miller is based. In the beginning, there was Atkins v. Virginia, a 2002 case in which Justice Kennedy signed on to Justice John Paul Stevens' 6-3 ruling outlawing the execution of mentally retarded capital defendants. Next came Roper v. Simmons, in 2005, in which Justice Kennedy, writing for a 5-4 majority, outlawed capital punishment for murderers who committed their crimes before age 18.

Next came Graham v. Florida in 2010, in which Justice Kennedy, writing for another slender majority, outlawed life sentences for juvenile offenders who committed non-homicide crimes. "By denying the defendant the right to reenter the community," Justice Kennedy wrote, "the State makes an irrevocable judgment about that person's value and place in society. This judgment is not appropriate in light of a juvenile non homicide offender's capacity for change and limited moral culpability."

The Miller case was designed to explore one step further -- could mandatory life sentences for convicted murderers also run afoul of the "cruel and unusual punishment" clause of the Eighth Amendment? When I wrote a piece about the oral argument in the case back in March, I was struck by how many of the justices have children. I wondered at the time whether, in some way, their roles as parents would impact their perceptions of the issues raised in the case. Now I have my answer.

MILLER v. ALABAMA

The essence of all these cases, including Miller, is that criminal defendants, especially those who are mentally, intellectually, and emotionally vulnerable, ought to be afforded a level of "individualized sentencing" that eschews "mandatory'' sentences. It's neater and more politically popular for state legislators to sentence offenders in broad categories. But as we have seen in so many capital cases, as we have seen in so many other cases, just because these classifications are convenient doesn't make them constitutional.

For the majority, Justice Kagan looked at two horrific crimes, two profoundly disturbing murders, involving two deeply troubled young people who ended up caught up in two mandatory life sentencing schemes in Alabama and Arkansas. Citing the precedent noted above, and dispatching with the dissents in a footnote that suggested there was no use in "re-litigating" those cases, she declared that "youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole."

Here, judge for yourself whether you agree with Justice Kagan's assessment. She wrote:

In light of Graham's reasoning, these decisions too show the flaws of imposing mandatory life-without-parole sen­tences on juvenile homicide offenders. Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sen­tence as every other -- the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one.
And still worse, each juvenile (including these two 14­year-olds) will receive the same sentence as the vast ma­jority of adults committing similar homicide offenses -- but really, as Graham noted, a greater sentence than those adults will serve. In meting out the death penalty, the elision of all these differences would be strictly forbidden. And once again, Graham indicates that a similar rule should apply when a juvenile confronts a sentence of life (and death) in prison.

And then, because Justice Kagan knows she is writing for an audience beyond the Court, she added:

To recap: Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features -- among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him -- and from which he cannot usually extricate himself -- no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.
Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth -- for example, his inability to deal with police officers or prosecutors(including on a plea agreement) or his incapacity to assist his own attorneys.

This is the rationale upon which the dissenters focused their ire.

THE DISSENTS

First up to the plate was the "umpire" himself, Chief Justice John Roberts, the man whose legacy (let's face it) will be largely determined Thursday by what happens to the Affordable Care Act. In Miller, the chief justice wrote that there is no viable Eighth Amendment problem if there is nothing "unusual" about the punishment. About 2,000 juvenile offenders are currently serving mandatory life sentences, the Chief Justice wrote -- hardly an unusual occurrence.

Next came a remarkably philosophical passage from the chief justice about the distinctions between decency and leniency in sentencing. I don't know that I've ever read a passage from John Roberts that had as much esoteric passion in it. This is what umpiring would be like if (fill in your favorite philosopher here) were behind the plate:

Mercy toward the guilty can be a form of decency, and a maturing society may abandon harsh punishments that it comes to view as unnecessary or unjust. But decency is not the same as leniency. A decent society protects the innocent from violence. A mature society may determine that this requires removing those guilty of the most heinous murders from its midst, both as protection for its other members and as a concrete expression of its standards of decency. As judges we have no basis for deciding that progress toward greater decency can move only in the direction of easing sanctions on the guilty.

And then the Chief Justice trotted out a parade of horribles:

This process has no discernible end point -- or at least none consistent with our Nation's legal traditions. Roper and Graham attempted to limit their reasoning to the circumstances they addressed -- Roper to the death penalty, and Graham to non homicide crimes. Having cast aside those limits, the Court cannot now offer a credible substitute, and does not even try. After all, the Court tells us, "none of what [Graham] said about children ... is crime- specific."
The principle behind today's decision seems to be only that because juveniles are different from adults, they must be sentenced differently. There is no clear reason that principle would not bar all mandatory sentences for juveniles, or any juvenile sentence as harsh as what a similarly situated adult would receive. Unless confined, the only stopping point for the Court's analysis would be never permitting juvenile offenders to be tried as adults. (citations omitted)

Then it got worse. Justice Clarence Thomas, as is his wont, made sure the world was reminded of his distaste for the entire line of legal precedent upon which Justice Kagan and the majority had relied. At times, he mocked the majority. Nothing in the Constitution had changed in the decades since the Court had refused to recognize age as a component in sentencing, he wrote. "What has changed (or better yet, 'evolved') is this Court's ever-expanding line" of cases.

Batting third was Justice Samuel Alito, writing for himself and Justice Antonin Scalia (who likely was tuckered out by his dissent in Arizona v. United States). Bemoaning what he perceives as the Supreme Court's abandonment of the "original" meaning of the Eighth Amendment, and predicting that the Court would go even further in reducing sentences for juvenile murderers, he unloaded, for page after page, upon the majority's rationale. For example, he wrote:

What today's decision shows is that our Eighth Amendment cases are no longer tied to any objective indicia of society's standards. Our Eighth Amendment case law is now entirely inward looking. After entirely disregarding objective indicia of our society's standards in Graham, the Court now extrapolates from Graham. Future cases may extrapolate from today's holding, and this process may continue until the majority brings sentencing practices into line with whatever the majority views as truly evolved standards of decency.

POSTSCRIPT

This is your Supreme Court, folks. Sure, there is collegiality on some levels. These people are stuck with one another, after all, so they have to get along to a certain extent. But there is no center of gravity. There are, instead, two bitterly divided sides, with Justice Kennedy alternating from one to the other depending upon his own jurisprudence in any given case. This dynamic has occurred before since the Court was formed. And it will likely occur again.

In the meantime, get ready for Thursday and the Affordable Care Act. Get ready for hundreds of pages of opinions and dissents and very pointed disagreements about fundamental concepts in American law. If Monday's cases are any indication, Thursday is shaping up to be one of the ugliest days in the long history of the fabled institution.