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America’s Last Principled Judge Speaks


Yesterday, the Supreme Court decided a complicated case about whether the Supreme Court’s 2012 holding that mandatory life without parole applied retroactively to people making federal habeas corpus appeals. The Supreme Court’s retroactive application cases are legally complicated, in part because they’ve always been pragmatic. In Stovall v. Denno, Brennan created a three-point test to determine whether newly established constitutional rules that included “the effect on the administration of justice of a retroactive application of the new standards.”  And this was really the show — if applying a rule retroactively would (as with Miranda) result in large numbers of people being released from prison the rule won’t be applied retroactively; if the effects would be more modest, there’s a chance it would. Questions of whether a change in the law is a “substantive” change that can be applied retroactively are likely to be similarly affected by pragmatic considerations. Given this background, it’s not surprising that the state lost in Montgomery v. Louisiana. Applying the rule retroactively applies to a relatively small number of prisoners, and doesn’t necessarily require the state to release them.

One can reasonably disagree with Kennedy’s opinion. Scalia decided to take the occasion to write one of his trademark BLISTERING DISSENTS. First, on jurisdiction:

But a majority of this Court, eager to reach the merits of this case, resolves the question of our jurisdiction by deciding that the Constitution requires state postconviction courts to adopt Teague’s exception for so-called “substantive” new rules and to provide state-law remedies for the violations of those rules to prisoners whose sentences long ago became final. This conscription into federal service of state postconviction courts is nothing short of astonishing.

Here’s some relevant background information: Louisiana conceded that the Supreme Court had jurisdiction. The Court actually had to appoint an amicus to have the jurisdiction question argued. The Court is free to find a lack of jurisdiction, but for the Court to agree with a position taken by both parties to the case is very, very short of being astonishing. I also appreciate the “conscription” language, which 1)makes the astonishing implication that there’s something unusual or undesirable about state courts having to enforce federal constitutional rules and 2)reminds us of Scalia’s eminently hacktacular non-commandeering jurisprudence.

On the merits:

How wonderful. Federal and (like it or not) state judges are henceforth to resolve the knotty “legal” question: whether a 17-year-old who murdered an innocent sheriff’s deputy half a century ago was at the time of his trial “incorrigible.” Under Miller, bear in mind, the inquiry is whether the inmate was seen to be incorrigible when he was sentenced—not whether he has proven corrigible and so can safely be paroled today. What silliness.


This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders. The Court might have done that expressly (as we know, the Court can decree anything), but that would have been something of an embarrassment. After all, one of the justifications the Court gave for decreeing an end to the death penalty for murders (no matter how many) committed by a juvenile was that life without parole was a severe enough punishment. How could the majority—in an opinion written by the very author of Roper—now say that punishment is also unconstitutional? The Court expressly refused to say so in Miller. So the Court refuses again today, but merely makes imposition of that severe sanction a practical impossibility. And then, in Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply “permitting juvenile homicide offenders to be considered for parole.”

Isn’t that particular Godfather reference a little tired? Couldn’t he at least have gone with “my offer to 16-year-olds sentenced to life without parole is this: nothing” or “This whole opinion is an abortion! Something that’s unholy and evil!” As for the outcome the middlebrow dudgeon is being directed against — if the “worst-case” scenario is people sentenced to life sentences as teenagers getting parole hearings, I find this about as scary as his thunderous warnings about how the state may not be able to enforce laws against masturbation in the wake of Lawrence.

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