Deciding an appalling case in which a 17-year old was given life without parole for a violating parole, the Supreme Court held today that life-without-parole sentences for juvenile offenders violate the Eight Amendment to the Constitution. And while I had feared a “minimalist” opinion that would create a balancing test that state courts would always resolve in favor of the state, in the majority opinion (see Part III C) Justice Kennedy argues convincingly that a categorical rule is necessary in this case. Chief Justice Roberts — in what I’m guessing was an attempt, if not to get a minimalist majority opinion, at least to prevent 5 votes for a categorical rule — wrote a concurring opinion arguing that the sentence should be ruled unconstitutional based on a case-by-case balancing test, but didn’t find any takers.
Clarence Thomas’s dissent — joined entirely by Scalia and in its most important aspects by reasonable, moderate, thinking person’s conservative Sam Alito — does make one convincing point: Kennedy’s argument that there’s an “emerging consensus” against life-without-parole for juveniles is unconvincing. The Court’s majority opinion does indeed reflect an “independent judgment” that the Eighth Amendment bans such sentences. Where I disagree with Thomas is that there’s something wrong with this. Exercising independent judgment is what courts do when exercising judicial review. And, of course, when policy outcomes they cherish are at stake Thomas and Scalia are perfectly happy to exercise their “independent judgment” that decisions made by electorally accountable officials are unconstitutional even in the absence of an emerging consensus or a compelling argument that as originally understood the Constitution forbade those practices. And sentencing is one area where where the normative unattractiveness of originalism is particularly stark. Reminding me again while I’ll miss him, Stevens sums it up devastatingly in his brief concurrence:
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 commitment 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.
And you know who agrees with this in his more candid moments? Antonin Scalia, who has expressly said that he would not uphold a sentence for flogging even though it would seem to be permitted under an originalist understanding of the Eight Amendment was right. Not only is that Scalia right, but it’s impossible to explain why the framers wrote the Eighth Amendment the way they did if they meant only to proscribe a small, specific set of punishments that were illegal at the time the Bill of Rights was ratified. In this sense, the majority opinion is actually more consistent with the text and original meaning of the Constitution than the dissent.