The Supreme Court is an egalitarian place in at least one sense: At some point, everybody loses. Most terms in recent decades, the liberals lose disproportionately. Some terms, the conservatives take a loss. Even Justice Anthony Kennedy loses every once in a while, and until recently he was basically a king. Most justices accept their loss, pen biting dissents, and get back on the horse to wage future battles—but this term, something very odd is happening. Justices Samuel Alito and Clarence Thomas lost a major constitutional case back in January. And now, four months later, it is alarmingly clear that neither man accepts the reality of his defeat.
Alito and Thomas’ diagnosable denial came to a head on Monday, when the court took care of the routine business of applying a recent decision to cases still on the docket. Here on planet Earth, that decision, Montgomery v. Louisiana, is settled law. Montgomery held that a 2012 decision barring mandatory life without parole for juvenile offenders applies retroactively, creating a new “substantive right” for convicts who were once juveniles sentenced to life. Under Montgomery, prisoners sentenced to life as juveniles have a right to present evidence that they have shed their youthful criminality and deserve to be released. Only the “rarest of juvenile offenders” may be imprisoned for life, the court found; all must be given an opportunity to demonstrate rehabilitation, and “all but the rarest,” most depraved offenders must eventually be set free.
Predictably, Alito and Thomas dissented from both Montgomery and its predecessor, Miller v. Alabama. The trouble began when the former was decided earlier this year: In his dissent, Thomas actually encouraged state courts to refuse to hear Montgomery appeals. This was bizarre, but at least it came during the course of the routine business of dissenting from a major opinion. But shortly after Montgomery, things got way weirder. The Supreme Court reversed nearly two-dozen lower court decisions prohibiting juvenile defenders from appealing their life sentence, as the new precedent would demand; but Alito and Thomas kept pinning a curt caveat to each new order, urging courts to consider other grounds on which they could reject the appeal and keep the prisoners sentenced as juveniles locked up for life.
On Monday, Alito and Thomas went a step further, attempting to perform an act of prestidigitation that would effectively make Montgomery disappear altogether. In an opinion joined only by Thomas, Alito noted that several juvenile offenders appealing their life sentences had originally been sentenced to death—back before the Supreme Court outlawed capital punishment for minors. (When the court finally found that executing juvenile offenders violated the Constitution, these offenders’ death sentences were converted to life sentences without the possibility of parole.) In that era, special rules applied to a minor in a capital case: A jury was required to consider “all relevant mitigating evidence,” including the offender’s age. That means these offenders already had one opportunity to explain why their age reduces their guilt. Because juries might have “considered but rejected youth as a mitigating factor,” Alito writes, courts should feel free to refuse these juvenile offenders a chance to appeal their life sentences under Montgomery. Taken seriously, his opinion Monday provides conservative judges with a road map to wriggle out from under Montgomery’s central command, illegally depriving juvenile offenders of their constitutional right.
As Justice Sonia Sotomayor points out in a separate opinion joined by Ruth Bader Ginsburg, this is dangerously wrongheaded. “There is no indication,” Sotomayor writes, “that, when the factfinders in these cases considered petitioners’ youth, they even asked the question Miller required them not only to answer, but to answer correctly: whether petitioners’ crimes reflected ‘transient immaturity’ or ‘irreparable corruption.’ ” There is an enormous difference between a jury maybe considering a juvenile’s age—as was acceptable back then—and a jury knowing that virtually all juvenile offenders have a substantive constitutional right to request parole, as is required today. Even worse, Sotomayor notes, these specific offenders hardly had an opportunity to show that their young age diminished their culpability:
The sentencing proceedings in these cases are a product of that pre-Miller era. In one typical case, a judge’s sentencing order—overruling a unanimous jury verdict recommending life without parole instead of death—refers to youth only once, noting “the court finds that the age of the defendant at the time of the crime is a mitigating circumstance” and then that “[t]he [c]ourt rejects the advisory verdict of the jury, and finds that the aggravating circumstances in this case outweigh the mitigating circumstances and that the punishment should be death.” Other sentencing orders are similarly terse. In at least two cases, there is no indication that youth was considered as a standalone mitigating factor. In two others, factfinders did not put “great weight” on considerations that we have described as particularly important in evaluating the culpability of juveniles, such as intellectual disability, an abusive upbringing, and evidence of impulsivity and immaturity.
Sotomayor debunks Alito’s incarceration fixation so thoroughly, in fact, that you might wonder why he didn’t retract his concurrence altogether. I suspect there are two possibilities here. The first is that Alito, along with Thomas, still really hate both Miller and Montgomery. They’re sore losers, and they want to undermine the impact of both cases as they ripple through the criminal justice system. The second explanation is arguably more perverse: Both justices adore dwelling on the grisliest, goriest details of gruesome crimes—as if to shame any justices who might dare to believe that the offenders ever deserve to regain their liberty. Thomas pulled this trick to egregious effect last term, and he joins Alito here as the justice describes child rape, stabbings, shootings, beatings, strangulation, and immolation.
To what end does Alito recount these horrific facts? To arouse the reader’s ire, of course—and to humiliate the justices who voted to give these murderers a second chance. (In response, Sotomayor simply reminds Alito of the court’s “repeated exhortation that the gruesomeness of a crime is not sufficient to demonstrate that a juvenile offender is beyond redemption.”) Here, Alito may well be targeting Chief Justice John Roberts more so than the rest of his colleagues. Roberts dissented from Miller in 2012, but he joined the Montgomery majority in January, apparently accepting Miller as valid precedent. Alito refuses to do the same, and Roberts’ willingness to follow and apply the law—even where he disagrees with it—may register as yet another defection from the court’s shrinking conservative wing.
The United States is currently the only country in the world where juvenile offenders may legally be sentenced to life in prison without the possibility of parole. Miller and Montgomery cut back on the practice, bringing America more in line with a near-global consensus in international law. Even John Roberts sees the writing on the wall. And yet still, in 2016, two of our Supreme Court justices strive to keep as many juvenile offenders in prison as possible, intentionally blurring the law to bend it toward their penological preferences. That’s an outrage. The law on juvenile life without parole is perfectly clear. And Alito and Thomas are on the wrong side of it.