Scalia on Kennedy Ruling Juvenile LWOP is Unconstitutional Without So Decreeing: “Mission accomplished.”

January 25th, 2016

I freely admit that I find the 8th Amendment uninteresting. At least five Justices have made up their mind that the death penalty needs to be eliminated, but because they don’t want to do it all at once, they are systematically, step-by-step, making it harder and harder to execute someone. We all know where this one is going. Justice Scalia’s dissent in Montgomery v. Louisiana makes this process really, really personal.

In short, the Court rules that the Constitution requires that Miller–invalidating Juvenile LWOP in certain circumstances–must be applied retroactively for post-conviction relief of a murder conviction. (I will come back later to the discussion between Scalia and Kennedy on the constitutional issue.

Using language that harkens to his Obergefell dissent, Scalia specifically refers to the five Justices in the majority (In Obergefell he demoted them to “lawyers.”)

So for the five decades Montgomery has spent in prison, not one of this Court’s precedents called into question the legality of his sen- tence—until the People’s “standards of decency,” as per- ceived by five Justices, “evolved” yet again in Miller.

The final paragraph of Scalia’s dissent targets Kennedy, directly, for the sophistry I laid out at the beginning of the post.

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.

Further, Roper’s decision invalidating the death penalty for juvenile offenders was premised on the availability of life without parole.

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 with-out parole was a severe enough punishment. See Roper, 543 U. S., at 572.

The same person–let’s call him Tony–wrote Roper, Miller, and now Montgomery.

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. 567 U. S., at ___ (slip op., at 17).

Here was AMK’s explanation in Miller three years ago about why it would not impose a “categorical” bar:

By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment. Because that holding is sufficient to decide these cases, we do not con- sider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger.

Scalia continues:

So the Court refuses again today, but merely makes imposition of that severe sanction a practical impossibility.

That is the M.O. of death penalty abolitionists. Make it constitutional, but a “practical impossibility.” Scalia, channeling his Italian heritage, ends with a bang.

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.” Ante, at 21. Mission accomplished.

Let’s hope Justice Kennedy has EZ-Pass in case he ever travels on the New Jersey Turnpike.