SCOTUS Rules Life Sentences for Juvenile (Non-Homicide?) Offenders Unconstitutional

The case was Graham v. Florida, the WaPo blurb is here. The ruling was a somewhat fractured 5-4 (Roberts, who would have been the sixth vote, concurred in the judgment with regards to this defendant, but did not agree that there should be a categorical constitutional bar). And meanwhile, Justice Stevens, going out in a hail of glory, let loose with this concurrence:

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. 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 a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment , proportionality review must never become effectively obsolete.

While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

A fitting send-off to a stellar career by Justice Stevens.

Empathy Quick Hit

Dahlia Lithwick and Sonja West's article on how John Paul Stevens showed the importance of "empathy" in a judge is a very good piece.

Narrowed Down

NRO asked various contributors for their take on who Obama will nominate to fill John Paul Stevens' court seat. Ted Frank, of the Center for Class Action Fairness, makes what I can only imagine to be a faux-serious case for Frank Easterbrook:

One striking thing about the Obama administration is the extent to which it has modeled itself after the television series The West Wing — right down to picking silly fights with talk-show hosts.

Obama could do it again. The fictional President Bartlet, faced with the political problem of two Supreme Court vacancies, picks someone Republicans would like in addition to his conventionally liberal choice. Having already nominated a conventional liberal in Justice Sotomayor, Obama could demonstrate his bipartisan chops by nominating the greatest living jurist — his fellow Chicagoan, Reagan appointee Judge Frank Easterbrook.

Judge Easterbrook is 61, older than any Supreme Court nominee since 1972, and, in his 25 years on the bench, he has become famous for such principled stands as upholding the constitutionality of a Chicago ban on spray paint even as he ridiculed it as a ludicrous law. If Obama forces swing-state Democrats in the Senate to vote for the confirmation of a judicial activist out of the popular mainstream, he’ll make the 2010 midterms even more painful for his party than they’re already expected to be. On the other hand, Obama can recapture independents for an increasingly marginalized Democratic party by proving that he values merit more than politics (including identity politics) in the nomination process. Think how relieved Senators Specter, Reid, Lincoln, and Bennet would be.

Aside from getting the West Wing plot wrong (Bartlet nominated a liberal and conservative because the two justices leaving the Court were a liberal and a conservative. That hardly applies when the anchor of the Supreme Court's left flank is the one retiring), I can only say come on. Even if we narrow the field to conservative 7th Circuit judges affiliated with the University of Chicago who are already living legends, Obama still would nominate Richard Posner over Frank Easterbrook (no slight intended on the latter -- Posner's just more iconoclastic).

The Last Lion

Justice John Paul Stevens has just announced the end of his 30+ year tenure on the Supreme Court. I know how much he loved this job, and so how hard this decision must have been for him. But I salute his career, and hope he has an enjoyable retirement.

SCOTUS Scores

An ideological history of the Supreme Court. It does show how the Court has notably tilted to the right over the past twenty years (since the appointment of Clarence Thomas). There is simply no true blue liberal on the Court anymore -- the closest is John Paul Stevens, but he is dwarfed by the conservatism of, say, Antonin Scalia, and doesn't approach the hey-day ratings of a Marshall, Douglas, or Brennan.

The Desegregation Opinions: Justice Stevens' Dissent

[Other posts in the series:

Blogand Media Roundup

Reaction to Justice Thomas' concurrence

Reaction to Justice Breyer's dissent

Reaction to C.J. Roberts' opinion

Reaction to Justice Stevens' dissent

Reaction to Justice Kennedy's controlling concurrence

Opening thoughts (Parts I and II)]

Stevens' dissent was short, so I won't excerpt it extensively. There is some anger and a lot of sadness in Stevens' words. In many ways, it is the dissent I felt I would have written had I been in the court. It seems to me that there was more here before Stevens' pulled himself back from the precipice--the opening and closing foreshadow a much darker opinion that would have all but accused the plurality of trying to overturn Brown. Here's how he opens his dissent:

There is a cruel irony in THE CHIEF JUSTICE's reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: "Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin." Ante, at 40. This sentence reminds me of Anatole France's observation: "[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." THE CHIEF JUSTICE fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, THE CHIEF JUSTICE rewrites the history of one of this Court's most important decisions. Compare ante, at 39 ("history will be heard"), with Brewer v. Quarterman, 550 U. S. ___, ___ (2007) (slip op., at 11) (ROBERTS, C. J., dissenting) ("It is a familiar adage that history is written by the victors").

The France quote is one of my favorites, and it is fitting here. This is fire from Justice Stevens--and rightfully so. I suspect that in his first draft, there was a lot more in this vein. But by his closure, he is burned out, and his last sentence--understated as it is--sends chills through me:

"It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision."

Though this is almost certainly untrue (Rehnquist at least would have easily been on board with this opinion), the sentiment comes through nonetheless. Stevens knows he doesn't have much more time on the Court, and is saying the last rites for the Warren consensus which was dedicated to securing racial justice in America. Thanks to Justice Kennedy, that pact still lives. But it is on life support, and Stevens was right to craft his eulogy.