Devolving standards of decency

Earth Day, 2021

Dear Readers,

This letter is going to focus on the Supreme Court. On Thursday morning, the Court handed down its opinion in Jones v. Mississippi, a juvenile justice case concerning Brett Jones and the sentences imposed for his 2005 murder conviction. Jones was fifteen years old when he killed his grandfather, Bertis, stabbing him eight times with two different knives.

Jones is a prisoner in his early thirties today, serving a life sentence in the Mississippi state prison system without the possibility of parole. He has been inside longer than he was free. His appeal to the Supreme Court turned on whether that sentence was lawfully imposed. Jones argued, persuasively, that the sentence had resulted from Mississippi’s highest court misreading the Supreme Court’s recent cases laying down constitutional requirements for sentencing juveniles to life without any possibility of release. Nevertheless, all six Republican-appointed Justices voted to uphold the sentence, and Justice Kavanaugh wrote the opinion of the court.

The decision is likely a harbinger of how the Supreme Court’s Republican-appointed supermajority may behave in the years to come.

It marks a departure from a line of decisions on juvenile punishment largely crafted by former Justice Anthony Kennedy during the era when his swing vote determined the direction of the law. Drawing on the Court’s longstanding view that it could invoke “evolving standards of decency” to forbid certain punishments under the Eighth Amendment, Kennedy wrote the opinion deciding that it was unconstitutional to sentence minors under the age of 18 to death. He joined Justice Kagan’s 5-4 opinion that mandatory life sentences without the possibility of parole were also unconstitutional for minors, and then he wrote the opinion that made that principle retroactive.

Shortly after that last case was handed down, Kennedy sat down with former President Trump and reportedly helped convince him to pick his former clerk Brett Kavanaugh to fill his seat upon his retirement. So it’s not without some irony, amidst all the dark clouds, that Kennedy’s handpicked successor is the one to start erasing this part of his legacy.

In a blistering dissent joined by other liberals on the Court, Justice Sotomayor chastised the majority for abandoning Kennedy’s recent precedents, pointedly citing Justice Kavanaugh’s past statements:

How low this Court’s respect for stare decisis has sunk. Not long ago, that doctrine was recognized as a pillar of the “‘rule of law,’” critical to “keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.” Ramos, 590 U. S., at ___–___ (opinion of KAVANAUGH, J.) (slip op., at 1–2) (internal quotation marks omitted). Given these weighty interests, the Court “usually require[d] that a party ask for overruling, or at least obtain[ed] briefing on the overruling question,” and then “carefully evaluate[d] the traditional stare decisis factors.” Barr v. American Assn. of Political Consultants, Inc., 591 U. S. ___, ___, n. 5 (2020) (slip op., at 9, n. 5). Now, it seems, the Court is willing to overrule precedent without even acknowledging it is doing so, much less providing any special justification. It is hard to see how that approach is “founded in the law rather than in the proclivities of individuals.” Ramos, 590 U. S., at ___ (opinion of KAVANAUGH, J.) (slip op., at 2) (internal quotation marks omitted).

Lest you think that this description is some contrived liberal take about Kavanaugh’s jurisprudence, it’s worth noting that, in his concurrence, Justice Thomas agreed with Sotomayor that Kavanaugh’s reading of the Court’s precedents was “strained.” Thomas thought the right approach was to expressly overturn some of those Kennedy-era precedents, rather than gutting them without admitting to it.

There are, I think, two plausible, wide-angle ways of looking at this decision. Neither, I’m afraid, is very encouraging.

First, one could take it as a narrow consequence of the Court’s Eighth Amendment jurisprudence, which since the 1950s has given the Justices themselves the authority to measure “the evolving standards of decency that mark the progress of a maturing society” and decide what the amendment forbids and what it allows. The phrase implies a sort of one-way ratchet in which our maturing society becomes more humane and sophisticated about punishment and judges mark our growth and maturity as a people. But we all know, from the past several decades of American politics if nothing else, that the standards of decency Americans adhere to can evolve down as well as up. Whole societies don’t mature like fifteen-year-olds eventually do. Maturity and decency ebb and flow in society in response to the pressures people are under. American society produced governments in recent memory that re-instituted torture as a tool of statecraft, shipped captives to a secret archipelago of prisons around the world and held them there incommunicado, killed foreign nationals and its own citizens without any due process (by drone strike), tore children from their mothers’ arms in order to deter refugee migration, etc. It’s not a galloping shock that judges are ratcheting down the standards of decency that, in their view, the Constitution demands.

Second, one could view this more broadly as the 6-3 Republican-appointed majority simply flexing its muscles. Conservative Justices vociferously opposed a lot of what Kennedy was doing, whether it had to do with Eighth Amendment jurisprudence, reproductive rights, or marriage equality. Now, they’re finding they have the votes to start rolling back what they consider misbegotten decisions, and among the six only Clarence Thomas is uttering any cautions about stare decisis. That’s an ominous view for people who approved of and relied upon the effect of Kennedy’s expansions of individual rights and constitutional protections, or for that matter, the Warren Court’s.

The prospect of a counter-majoritarian Supreme Court not only exercising a veto power over any new legislation that Democrats may be able to get passed but also picking off old, settled principles of law at moments of opportunity is deeply destabilizing. Will Wilkinson explains the trouble in his brilliant post, which I’ll let have the last word:

When minorities strip majorities of their power to successfully seek redress and assert their will within the system — which is what a stacked 6-3 Republican court majority veto over Democratic unified government could amount to — sooner or later, stymied majorities will seek to protect their rights and interests outside the system. This is what it means for a political system to lose legitimacy — in the grubby, practical, nuts-and-bolts stabilizing sense of “legitimacy.” And that’s profoundly important, because we don’t want citizens to act outside the institutions meant to prevent disagreement from spilling into civil conflict. Avoiding that is the whole damn point.