As we continue to wait for the Supreme Court’s decision on ObamaCare, we might profitably spend some of our time reading Chief Justice Roberts’ masterful dissent yesterday in Miller v. Alabama. The issue in Miller is unrelated to ObamaCare, but the dissent illustrates three points that may be relevant to the decision coming on Thursday.
In Miller, the Court ruled 5-4 that statutes mandating life in prison without possibility of parole for juvenile murderers were “cruel and unusual” punishment. Justice Kagan’s majority opinion stressed “the evolving standards of decency that mark the progress of a maturing society” — to which the chief justice responded that the majority had not characterized, and could not plausibly characterize, the punishment as “unusual” (the standard set forth in the Constitution), as more than 2,000 prisoners are serving such mandatory sentences and “the Federal Government and most States impose” them under recently-enacted laws. He wrote:
“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.”
The chief justice acknowledged the cases cited by the majority stood for the proposition that teenagers are less mature, less responsible, and less fixed in their ways than adults — “not that a Supreme Court case was needed to establish that” — but such cases did not mean that legislators –“who also know that teenagers are different from adults” — may not require life without parole for juveniles “who commit the worst types of murder.” His opinion, joined by the three other dissenting justices, ended with an eloquent statement of what he thought was the proper role of the Court:
“It is a great tragedy when a juvenile commits murder — most of all for the innocent victims. But also for the murderer, whose life has gone so wrong so early. And for society as well, which has lost one or more of its members to deliberate violence, and must harshly punish another. In recent years, our society has moved toward requiring that the murderer, his age notwithstanding, be imprisoned for the remainder of his life. Members of this Court may disagree with that choice. … But that is not our decision to make.”
Here are the three points relevant to ObamaCare:
First, in speaking about ObamaCare, President Obama suggested it would be “an unprecedented, extraordinary step” for the Court to “somehow overturn a duly constituted and passed law.” Because that is what the Court did three times yesterday (in Miller, in the Arizona immigration case, and in the Montana campaign finance case), hopefully the president will not demagogue the Court if it “somehow” does it again on Thursday.
Second, President Obama presumably considers Miller a milestone in the evolving standards of decency that mark the progress of a maturing society, even though it was only a 5-4 decision, effectively decided by a single justice. Should the Court strike down ObamaCare on Thursday by a 5-4 vote (possibly by the fifth vote of that same justice), hopefully the president will accord the decision the same respect he gives the 5-4 Miller decision.
Third, in 2005 Senator Obama voted against the confirmation of Chief Justice Roberts solely because he disagreed with Roberts’ political philosophy (he conceded Roberts was otherwise eminently qualified). Obama asserted that hard cases, including those under the Commerce Clause, should be decided by the justice’s “core concerns” and “values,” rather than legal precedent and “rules of construction and interpretation.” With five Republican appointees on the Court, President Obama has to hope that Thursday the justices do not simply apply his standard and enact their own personal values — as the majority arguably did yesterday in Miller.
Footnote 1 of "THOMAS, J., dissenting" is just too cute: n n"I join THE CHIEF JUSTICE’s opinion because it accurately explains that, even accepting the Court’s precedents, the Court’s holding in today’s cases is unsupportable." ("[E]ven accepting the Court's precedents," haha.) n nBut yeah, I grew skeptical reading the majority opinion quite a bit in, and found Roberts potent even as his argument was addressed in a footnote.
BreadAlone — thanks for pointing us to Justice Thomas’s separate dissent (which Justice Scalia joined). Thomas’s opinion is forcefully argued and well worth reading, even if not as elegant as that of the Chief Justice. n nJustice Thomas objects to the Court voiding the legislatively-enacted sentencing regimes of 29 jurisdictions with “no basis in the original understanding of the Eighth Amendment.” Footnote 2 indicates why he used the “cute” language of Footnote 1: n n“Petitioners were 14 years old at the time they committed their crimes. When the Bill of Rights was ratified, 14-year-olds were subject to trial and punishment as adult offenders. [Citation]. Further, mandatory death sentences were common at that time. [Citation]. It is therefore implausible that a 14-year-old’s mandatory prison sentence — of any length, with or without parole — would have been viewed as cruel and unusual.”
Whoever marked you down, well, it wasn't me; but I disagree as to the potency of Thomas's originalist thinking here. (His argument is potent otherwise, if you can separate the various strands of thought.) In sections like II-B of his dissent (and I apologize, because I'm not the most educated as to how to refer to these court opinions or portions thereof), I think Thomas has much stronger argument. [The Court rejected that argument, explaining that "[t]here can be no serious contention . . . that a sentence which is not otherwise cruel and unusual becomes so simply because it is ‘mandatory.’ ” Id., at 995." I.e., when Thomas refers to precedent that is very favorable to his argument.] n n(Also good is Footnote 4 and various other statements of his, such as "The Court has, thus, gone from “merely” divining the societal consensus of today to shaping the societal consensus of tomorrow." Which is along the lines of Roberts' statement above in the piece, that evolving standards be along the lines of "easing sanctions.") n nThat said, I'm liking Alito's originalist line of argument, because his is simply better [various portions below]: n n"Both the provenance and philosoph- ical basis for this standard were problematic from the start. (Is it true that our society is inexorably evolving in the direction of greater and greater decency? Who saysso, and how did this particular philosophy of history findits way into our fundamental law? And in any event, aren’t elected representatives more likely than unaccountable judges to reflect changing societal standards?) But at least at the start, the Court insisted that these 'evolvingstandards' represented something other than the personalviews of five Justices. See Rummel v. Estelle, 445 U. S. 263, 275 (1980) (explaining that 'the Court’s EighthAmendment judgments should neither be nor appear tobe merely the subjective views of individual Justices')."
Someone must have marked me up, since now I'm back at zero
n nI think that, taken together, the Roberts, Thomas, and Alito dissents are as good a discussion of judicial restraint as one can find, each from a slightly different perspective. n nRoberts argued persuasively that the issue was not a constitutional one under the explicit standard set forth in the Consitution (as opposed the loosey-goosey "evolving standards" criterion). Thomas argued that the constitutional provision had a widely understood meaning when it was enacted, and thus should be applied consistently with that meaning. Alito summarized how the "evolving standards" in case after case have become completely unhinged from any objective criterion that would bind the Justices to something other than their own views, and thus make future law unpredictable. n nAll together, three remarkable pieces of legal writing. Thanks, BreadAlone, for calling attention to the two other dissents.