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.”