Osler's Razor

Yesterday, the Supreme Court released its opinion in Graham v. Florida, holding that states (and the federal government) could not impose the punishment of life without the possibility of parole on juveniles who did not commit murder. It is the first time the Court has barred a punishment as to a specific group other than in capital cases. As many of you know, this is an issue I care about, and was the topic of my testimony in Congress a year ago and some public statements (including this CNN chat) more recently.

The Court split into three groups. The first, the majority, held that the penalty of life without parole categorically violates the Eighth Amendment as cruel and unusual, and that that this proscription applies to the states as a violation of due process. The opinion for the majority was written by Justice Kennedy, joined by Justices Sotomayor, Breyer, Ginsburg, and Stevens. The second group, in opposition to the first, rejected the idea that there should be a categorical rejection of this penalty, or that Mr. Graham should be otherwise exempted from that punishment. This group included Justices Scalia, Thomas, and Alito. Chief Justice Roberts, alone, comprises the third group. He rejected the majority's creation of a categorical rule, but felt that cases should be reviewed individually and that Mr. Graham's case was a violation of the Eighth Amendment.

The 84-page set of opinions is fascinating in that there are at least three fault lines running through the Court that are exposed:

1) First, it is significant that the Chief Justice held firm for a case-by-case analysis rather than creation of a categorical rule. While this might seem more inefficient than a categorical rule (and it is), it does allow for less intrusion into the province of state legislatures-- that is, it allows the states more freedom to determine their own laws. Make what you will of the fact that he pulled none of the other Justices to this position.

2) Of course, there is also the basic disagreement over whether juvenile life without parole is unconstitutional when applied to juveniles who did not kill, and the fact that they did not consider a broader rule that might cover the 2,500+ juvenile offenders serving LWOP sentences who did commit murder.

3) Finally, there was a fierce debate between members of the majority and one of the dissenters, Justice Thomas, over what the proper method of evaluating the question should be. The majority relied primarily on two things: Whether the majority of states were actually using this penalty (regardless of whether it was in the statutes), and their own subjective sense of whether the penalty of LWOP is disproportionate when sentencing juveniles for a crime less than murder. It is the second of these which was attacked by Justice Thomas, who said that the majority had moved "far beyond any cognizable constitutional principle the Court has reached to ensure that its own sense of morality and retributive justice pre-empts that of the people and their representatives."

Harsh words, indeed. And a wonderful debate over an important question we should be discussing for a long time, including in the confirmation hearings for Elena Kagan.