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Opinion: Fractures in Supreme Court Will Widen Thursday Opinion: Fractures in Supreme Court Will Widen Thursday

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Opinion: Fractures in Supreme Court Will Widen Thursday

Monday's gulf of opinions on the juvenile-sentencing case is just a warning tremor for the deep fractures that are sure to divide the Court on Thursday.


Chief Justice John Roberts(AP Photo/Michael Conroy)

So this is what Justice Ruth Bader Ginsburg alluded to a few weeks ago when she said that the current Supreme Court term was "more than usually taxing" because of its blend of deep ideological division mixed with a politically charged docket. As we wait for the term's final day on Thursday, a day of drama the Court has not seen since Bush v. Gore on Dec. 12, 2000, get a load of the seething tone of some of the dissents written and read on Monday in cases involving immigration and prison sentencing.

By 10:30 a.m. on Monday, with the health care ruling on hold, the big decision everyone wanted to talk about instead was Arizona v. United States, an election-year case about states' rights and federal immigration policy. By a 5-3 vote, the Court struck down three of Arizona's controversial measures and limited the scope of the fourth. In dissent, Justice Antonin Scalia wondered aloud whether we should, as a result of Justice Anthony Kennedy's majority opinion, "cease referring to [Arizona] as a sovereign state."


Folks, this is how fellow Reagan appointees were ragging on each other's work on Monday. Meanwhile, in the only other decision of the day, a case in which the Court by an even closer 5-4 vote banned mandatory life sentences for juvenile offenders, the Court's conservatives were free to unleash themselves upon the newest justice, Elena Kagan. The Obama appointee wrote the majority opinion in Miller v. Alabama with the help of the aforementioned Justice Kennedy.

The bad vibe was so pronounced in court on Monday, as the justices were reading various portions of their rulings, that Dahlia Lithwick, over at Slate, suggested (jokingly, I think) that cameras inside the courtroom perhaps aren't such a good idea after all. Here's my latest bright idea: If the Supreme Court broadcast Thursday's announcement of its decision over the Affordable Care Act, and if it made the broadcast pay-per-view, perhaps the national debt and deficit could be wiped out in a single hour.



It is a shame on many levels that Miller came down on a day when it was overshadowed by other news from the Supreme Court. For in Miller v. Alabama, we see both the clear continuation of a trend on the Court--and the passing of a torch. Even though Justice Kagan wrote the majority opinion in Miller, it was largely Justice Kennedy's precedent that she was following. More than that, it was Kennedy (as senior member of the majority) who assigned the opinion to Kagan to write.

Kennedy is central to this story because he's literally written the law upon which Miller is based. In the beginning, there was Atkins v. Virginia, a 2002 case in which Kennedy signed on to Justice John Paul Stevens's 6-3 ruling outlawing the execution of mentally retarded capital defendants. Next came Roper v. Simmons, in 2005, in which Kennedy, writing for a 5-4 majority, outlawed capital punishment for murderers who committed their crimes before age 18.

Next came Graham v. Florida in 2010, in which Kennedy, writing for another slender majority, outlawed life sentences for juvenile offenders who committed non-homicide crimes. "By denying the defendant the right to reenter the community," Kennedy wrote, "the State makes an irrevocable judgment about that person's value and place in society. This judgment is not appropriate in light of a juvenile non-homicide offender's capacity for change and limited moral culpability."

The Miller case was designed to explore one step further--could mandatory life sentences for convicted murderers also run afoul of the "cruel and unusual punishment" clause of the Eighth Amendment? When I wrote a piece about the oral argument in the case back in March, I was struck by how many of the justices have children. I wondered at the time whether, in some way, their roles as parents would affect their perceptions of the issues raised in the case. Now I have my answer.

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