And then the chief justice trotted out a parade of horribles:
This process has no discernible end point--or at least none consistent with our Nation's legal traditions. Roper and Graham attempted to limit their reasoning to the circumstances they addressed--Roper to the death penalty, and Graham to non homicide crimes. Having cast aside those limits, the Court cannot now offer a credible substitute, and does not even try. After all, the Court tells us, "none of what [Graham] said about children ... is crime- specific."
The principle behind today's decision seems to be only that because juveniles are different from adults, they must be sentenced differently. There is no clear reason that principle would not bar all mandatory sentences for juveniles, or any juvenile sentence as harsh as what a similarly situated adult would receive. Unless confined, the only stopping point for the Court's analysis would be never permitting juvenile offenders to be tried as adults. (citations omitted)
Then it got worse. Justice Clarence Thomas, as is his wont, made sure the world was reminded of his distaste for the entire line of legal precedent upon which Kagan and the majority had relied. At times, he mocked the majority. Nothing in the Constitution had changed in the decades since the Court had refused to recognize age as a component in sentencing, he wrote. "What has changed (or better yet, 'evolved') is this Court's ever-expanding line" of cases.
Batting third was Justice Samuel Alito, writing for himself and Justice Antonin Scalia (who likely was tuckered out by his dissent in Arizona v. United States). Bemoaning what he perceives as the Supreme Court's abandonment of the "original" meaning of the Eighth Amendment, and predicting that the Court would go even further in reducing sentences for juvenile murderers, he unloaded, for page after page, upon the majority's rationale. For example, he wrote:
What today's decision shows is that our Eighth Amendment cases are no longer tied to any objective indicia of society's standards. Our Eighth Amendment case law is now entirely inward looking. After entirely disregarding objective indicia of our society's standards in Graham, the Court now extrapolates from Graham. Future cases may extrapolate from today's holding, and this process may continue until the majority brings sentencing practices into line with whatever the majority views as truly evolved standards of decency.
This is your Supreme Court, folks. Sure, there is collegiality on some levels. These people are stuck with one another, after all, so they have to get along to a certain extent. But there is no center of gravity. There are, instead, two bitterly divided sides, with Kennedy alternating from one to the other depending upon his own jurisprudence in any given case. This dynamic has occurred before since the Court was formed. And it will likely occur again.
In the meantime, get ready for Thursday and the Affordable Care Act. Get ready for hundreds of pages of opinions and dissents and very pointed disagreements about fundamental concepts in American law. If Monday's cases are any indication, Thursday is shaping up to be one of the ugliest days in the long history of the fabled institution.