Dear Walter, Emily, and Judge Posner,
Emily, welcome aboard, we are looking forward to your thoughts on juvenile life sentences today!
Loads to say about this morning’s announcements from inside the Supreme Court chambers: Headlines include the 5-3 decision to strike three provisions (but leave one) of the Arizona immigration law, the summary reversal of the Montana Supreme Court on campaign finance, and the 5-4 decision to do away with mandatory life without parole sentences for juvenile homicide offenders.
We can digest these decisions and more as they day unfolds but I wanted to share one brief reaction to the announcements from inside the court. One thing that wasn’t clear if you weren’t actually inside chambers this morning is what happens when two justices disagree in close geographic proximity to each other. It makes for a very strange picture.
Justice Elena Kagan authored the majority opinion holding that the Eighth Amendment bars mandatory life without parole sentences for two 14-year-olds, and despite the fact that 29 states allow for such sentences, that judges must have the discretion to give more lenient sentences to those under 18 at the time of their crimes. She read her opinion fairly briefly. Then Justice Samuel Alito read his dissent from the bench and it was pretty brutal—more so than his actual dissent as published. He spent it all but accusing Kagan of calling the states who have currently mandatory LWOP laws “stupid” for misunderstanding their own statutes and declaring that the court has no right to impose our vision of the future on “millions of people.” He then decried today’s decision as proof that “our Eighth Amendment cases are no longer tied to any objective indicia of society’s standards” and that “our Eighth Amendment case law is now entirely inward looking.” Ouch.
Because Kagan still hasn’t quite perfected the ability to look neutral while the gentleman to her immediate right is calling her an elitist who’s also bad with numbers, this becomes a rather uncomfortable spectacle to witness. Indeed, this may be the first moderately compelling argument I have heard for keeping cameras out of the Supreme Court: Decision days can be far more threatening to the idea of jurists as dispassionate neutral umpires than argument days.
That impression was brought home yet more forcefully just moments later when Justice Antonin Scalia read his bench statement dissenting in Arizona v. United States, the Arizona immigration decision. Scalia explained that the states had sovereign authority to protect their borders at the founding and for a long time thereafter, then referenced the new Obama administration policy regarding immigrants who came here as children and citing the president’s press conference at which he explained that this change in policy is “the right thing to do.” (Perhaps the first originalist reading of a presidential press conference). Justice Scalia concluded by observing that the delegates to the Grand Convention would have “rushed to the exits of Independence Hall” on hearing the immigration law would be enforced only to the “extent the president deems appropriate.” He described the decision today as one that “boggles the mind.”
Justice Anthony Kennedy, who sat to Scalia’s left, appeared to look entirely unperturbed at having mind-boggled anyone present. If he was bothered at all, he has a much better poker face than Justice Kagan, who continued to look uneasy as Scalia went on scolding Justice Kennedy.
Nobody should be surprised that these cases engender the same kinds of passionate reactions in the justices that they do in the rest of us. But it’s fantastically interesting to sit in the courtroom and listen to Justice Scalia passionately decrying the “dry legalities” of the Arizona immigration case that obscure the suffering of the citizens themselves. When the justices are fuming that real people are being affected by their dusty decisions that should happen in person, not in dusty decisions. It does very little good to rail about the real world on paper. I’m not sure all this umbrage is something the justices want us to witness, but it’s getting harder to have a conversation about the Supreme Court and its politics without actually seeing it in person.