Just because a case has been decided doesn’t mean all issues surrounding it have been resolved. We will be reminded of this on Monday afternoon when Elena Kagan will begin her confirmation hearings by listening to what surely will be more than a few Senatorial earfuls over whether she agrees with the decisions in any of the four big cases the Court will have handed down just that morning.
But there will be other cases from this term that will continue to make hay in our courts and at the ballot box. The Court’s 5-4 opinion in Graham v. Florida invalidating life sentences without parole for juveniles convicted of non-homicide crimes is one such case. Graham has triggered changes–and with changes, challenges–to the criminal law’s political and legal landscape.
For those interested in some compelling post-Graham analysis, please check out Scott Hechinger’s article in the forthcoming issue of the NYU Review of Law & Social Change, now available on SSRN. Scott is a newly-credentialed NYU Law graduate, the 2010-11 Sinsheimer Children’s Rights Fellow, and very good friend of mine. This article is loaded with smart analysis and debatable positions that F1@1F readers will surely enjoy.
F1@1F has from its inception been animated by my hypothesis that the Roberts Court’s docket and decisions have been shaped the Chief Justice’s sensitivity to the Court’s surrounding political climate. As such, Citizens United represented less an act of war against the Democratic-controlled White House and Congress, and more a picked battle strategically placed to cause minimal institutional harm to a conservative Court with diminished political capital. Now that oral arguments are over and the politically salient cases are finally being decided, F1@1F will focus more fully on whether this term’s opinions support or disprove the hypothesis.
Last week’s opinions in Graham v. Florida and United States v. Comstock found Chief Justice Roberts unexpectedly siding with the Court’s liberal wing on ideologically divisive questions of law and politics.
In Graham, six members of the Court voted to vacate a juvenile’s sentence of life without parole for a non-homicide crime. Justice Kennedy’s five-member majority opinion, joined by the Court’s liberal bloc, declared that all such sentences categorically violate the Eighth Amendment.
Concurring in the judgment, Chief Justice Roberts hedged with an as-applied analysis rather than categorically endorse Kennedy’s expansive Eighth Amendment jurisprudence. Yet Roberts also refused to sign onto Thomas’s categorical denial of relief, despite his joining the dissent in Kennedy v. Louisiana, which outlawed the death penalty for child rape.
In a way, the Chief’s vote seems to recognize the public ambivalence towards life without parole (LWOP) for juveniles convicted of non-homicide crimes. As he saw it, people are either confortable enough in theory with the laws as written that allow LWOP, but are loath in practice to trust trial judges to fairly wield such awesome power; or they are uncomfortable in theory with LWOP for juveniles, but wish the death penalty still applied when confronted with particularly heinous crimes committed by almost-adults. It was for the latter type who, like the majority, reject even the theory of LWOP for juveniles, that Roberts juxtaposed Graham, who received LWOP for armed robbery with assault or battery, with a 17-year-old who “beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin in a remote landfill” and two juveniles “who together with their friends gang-raped a woman and forced her to perform oral sex on her 12-year-old son.”
Judging by his Graham concurrence and his joining the Kennedy dissent, Roberts’s own Eighth Amendment jurisprudence is more pragmatic and politically responsive than that of his eight colleagues. In undertaking a proportionality analysis, Roberts’s views are apparently guided by the shock of the crime rather than the severity of the punishment. Particular punishments are never categorically beyond the pale; only certain crimes are.
In Comstock, Roberts joined Justice Breyer’s opinion without any hedging whatsoever, thereby restoring a seemingly more expansive view of Congress’s Article I power than the Rehnquist Court would have allowed, at least before Raich. He could have joined Kennedy’s or Alito’s narrower concurrences in the judgment and thwarted a majority. Instead, he gave a fifth vote to a mode of reasoning that may dim the hopes of those challenging the Affordable Care Act.
The Chief Justice may have felt compelled to join Breyer’s opinion, which also included the rest of the liberal bloc, so to secure for the parties and future litigants a clear holding. I have difficulty believing that if the votes at conference were the same as they were at decision–7-2 to uphold as within Congress’s power a federal statute allowing for the civil commitment of sex offenders after their federal prison sentences have ended–the Chief would have delegated the majority opinion to Justice Breyer. This case had serious federalism implications, after all, and Breyer’s penchant for multi-factor balancing tests and general hostility to narrower readings of Congress’s Article I powers promised an opinion that would not sit well with the Court’s conservatives.
Two scenarios, then, come to mind. Roberts may have originally been with Thomas and Scalia in dissent, believing that Congress’s legislative powers go no further than those specifically enumerated in Article I of the Constitution. Justice Stevens, as the senior justice in the majority, could have assigned the opinion to Breyer as a reward for Breyer’s fever-pitch dissent in Lopez protesting the start of the Rehnquist Court’s ultimately incomplete federalism revolution. When Breyer’s opinion failed to attract five votes, Roberts may have switched his own, finding the opinion’s mushy language eminently manipulable to more conservative results in more important future cases.
The same pattern holds for a second scenario in which Roberts, unable to countenance freed sex offenders for the sake of federalism principles, may have voted at conference with Kennedy or, more likely, Alito. If the conference counted the votes based on reasoning rather than results, then Stevens still would have been the assigning justice.
Of course, Roberts may have simply agreed from the start with Breyer and the liberals. But even if such a thought was ideologically plausible prior to the announcement of Comstock, it just doesn’t make strategic sense for the Chief to entrust the opinion to Breyer. However, if the Chief was in the majority and did assign the opinion to Breyer, it could have been to send a message to those hoping the Court will strike down Obamacare: abandon all hope ye who enter here, for the Roberts Court will not cross the Roosevelt Rubicon.
Together, Graham and Comstock reveal a Chief Justice acutely aware of the country’s political climate and unwilling to sacrifice the Court’s institutional legitimacy for across-the-board conservative gain. There remain a handful of major cases yet to be decided, however, that could reveal a Chief Justice ready to gamble what remains of his Court’s post-Citizens United political capital on a few more battles.
I’ve just emerged from finals and am now enjoying my recovery period. I’ve got some thoughts on this past week’s Graham and Comstock decisions, and how they relate to the Roberts Court and our political climate. Those, as well as analysis on the Court’s forthcoming opinions on Monday, will be up next week.
Thank you for your patience!
Today Justice Kennedy extended his Eighth Amendment legacy as the author of the majority opinion in Graham v. Florida. The Court invalidated sentences of life without parole for juveniles convicted of non-homicide crimes. His opinion was joined by Justices Stevens, Ginsburg, Breyer, and Sotomayor.
Justice Roberts added his vote to the majority’s judgment that Graham’s sentence should be overturned, but refused to follow the majority’s broad determination that all sentences like Graham’s facially violate the Eighth Amendment’s ban on cruel and unusual punishment.
Justice Thomas, in a dissent joined by Justices Scalia and partially by Alito, wrote that the Court has rejected “the judgments of…legislatures, judges, and juries regarding what the Court describes as the ‘moral’ question of whether this sentence can ever be ‘proportionat[e]’ when applied to the category of offenders at issue here.”
In addition, Thomas struck at the return of Justice Kennedy’s famous citations to foreign law at the close of the majority opinion. Unwilling to dignify such references with a rebuttal in the body of the dissent, Thomas “confine[d] to a footnote the Court’s discussion of foreign laws and sentencing practices because past opinions explain at length why such factors are irrelevant to the meaning of our Constitution or the Court’s discernment of any longstanding tradition in this Nation.”
Justice Alito, writing for himself, added a short dissent noting that courts could still sentence juveniles to very long sentences without parole, as long as the sentences were not for life.
In two-paragraph concurring opinion, retiring Justice Stevens, joined by Justices Ginsburg and Sotomayor, attacked Justice Thomas’s dissent as too “rigid” an interpretation of the “evolving standards of decency” doctrine that has guided the Court’s Eighth Amendment jurisprudence since 1910. Stevens wrote:
Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commit- ment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete.
While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.