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.