This week's Supreme Court decision striking down juvenile life sentences without parole was not just a stunning victory for criminal justice reform. The ruling was another epic battle in the war raging over how conservatively to read the rights written into our Constitution.
In Graham v. Florida, the justices considered the appeal of Terrance Graham, convicted of two robberies committed before he was 18 years old. Despite the Florida legislature's abolition of the state's parole system, a judge sentenced Graham to life in prison, effectively locking him away and throwing out the key. With Florida's appeallate courts refusing to intervene, the U.S. Supreme Court stepped in, ruling it unconstitutional to sentence juveniles to life without parole.
The ruling is a rare and welcome bright spot from the Roberts Court, which is prone to siding with the government and corporations against individuals asserting their constitutional rights. The Graham decision is also a shockingly transparent window into the war of ideals over which the left- and right-wings of the Court are increasingly clashing.
The 5-4 majority was characteristic of the modern Court. Justices Stevens, Ginsburg, Breyer and Sotomayor joined forces against Roberts, Scalia, Thomas and Alito, and swing-Justice Kennedy stepped in to cast the deciding vote. This time, though, his opinion vindicates the rights of the disempowered over the objections of the powerful.
Kennedy's opinion reads like an outline of the hot-button issues in constitutional interpretation. Should the justices ignore evolving standards of decency in favor of the cultural attitudes of the late-1700's? Will the Court shrug past its prior case law and legislate a conservative activist agenda from the bench? Ought the Court disregard foreign law and practice when considering whether a punishment is "unusual"? The five opinions announced in Graham take different tacks on these questions, with Justice Kennedy's opinion for the majority offering a resounding refusal to endorse the conservative-activist position.
The prisoner's claim in Graham was that his sentence violated the Eighth Amendment prohibition against "cruel and unusual punishment." Kennedy's first stop in assessing this claim is the modern understanding of the words "cruel and unusual." He considers the fact that only 129 juveniles are currently serving life sentences without parole nationwide, with 77 of them incarcerated in Florida alone. As Kennedy put it, this makes Graham's sentence "exceedingly rare."
For Kennedy's consideration of "evolving standards and norms" -- something the Court has relied upon for at least a century when considering the Eighth Amendment -- he received a tongue-lashing from the Court's hardcore originalists, who claim to limit any analysis of the Constitution to the understandings of privileged, propertied white men 220 years ago. Writing in dissent, Justice Thomas argues that the modern applications of juvenile life sentences should not be considered, as modern practices were unavailable to the Founding Fathers. Thomas then goes on to argue that the punishment is not "unusual" under the Eighth Amendment because 37 states currently have it on the books. Hypocrisy much?
Thomas' blind leap back to 1791 provoked a pointed reply from Justice Stevens. "Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes," Stevens explains in support of Kennedy's opinion. "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 another time."
The moderates and arch-conservatives next crossed swords on the issue of whether to respect precedent. Kennedy points to the Court's 2005 decision in Roper v. Simmons, in which he again wrote for a 5-4 majority extending the logic of the Eighth Amendment. There, also over conservative objections, the Court struck down death sentences for juveniles. In Graham, Kennedy borrows the Court's neurological findings from Roper that juvenile brain development leaves room for growth in impulse control. Because a defendant's impulse control is likely to improve with maturity, abandoning him to lethal injection -- or in this case, a prison cell with no key -- would be a particularly cruel form of punishment.
Once again, the most conservative justices pounced upon Kennedy's approach to interpreting the law. Thomas again led the attack, writing, "I find it essential to reeaxamine the foundations" underlying the Court's Eighth Amendment jurisprudence. In an affront to stare decisis -- the principle that prior decisions of the Court warrant respect -- Thomas proceeds to rely primarily on the dissents, rather than the majorities, in those decisions that inconvenience his attempt to limit the Amendment.
In another attack on precedent, Chief Justice Roberts seems to invite states to challenge the Court's prior Eighth Amendment decisions. He writes that Thomas' opinion raises "serious and thoughtful questions" regarding the original intent of the Amendment. Then, Roberts says that he only sets aside Thomas' arguments about "originalism" based on the parties' failure to encourage reversal of the opinions Thomas overlooks. State attorneys general eager to keep juveniles incarcerated for life should read this as an express invitation to argue for reversal of 100 years of Supreme Court jurisprudence -- something the conservative justices demonstrated their taste for in a recent campaign finance case.
The last issue of constitutional interpretation over which the justices exchange barbs is the majority's citation to foreign law. The moderate-majority's opinion, in weighing the meaning of "cruel and unusual punishment," considers whether juvenile life sentences are uncommon, or "unusual," worldwide. In imposing life sentences without parole on minors, "the United States adheres to a sentencing practice rejected the world over," Kennedy writes.
Nothing seems to irk the right wing of the Court more than citation to other countries' laws in determining the meaning of "unusual." Thomas attacks the majority's discussion of foreign law, writing that "past opinions explain at length" his objections to the practice. Then, as with his argument about evolving standards of decency, he disregards his objections and engages Kennedy on the international commonality of juvenile life sentences. Thomas argues that other countries may not inflict life without parole on juveniles, but they do not forbid it either. Therefore, Thomas' argument leaps, we should not ban the practice, which -- unlike the rest of the world -- the United States actually engages in.
First dueling over whose definition of decency is relevant, then trading blows over the respect required for precedent, and finally exchanging jabs over citations to foreign law -- Graham v. Florida is a 12-round heavyweight bout over constitutional interpretation. This time, Kennedy sided with the moderates. With sensible determination of our rights hanging by Kennedy's fickle thread, however, it should be clear that progressives ought to be expecting more and better judicial nominations from the president that we helped elect.