Professor Rick Garnett is a professor of law, and I am not, so I do not disagree with him lightly on matters of the law. (He is also very smart so I do not disagree lightly with him on anything.) At his blog, Mirror of Justice, he takes issue with my immediate reaction to the recent Supreme Court decision that decreed it was unconstitutional to apply the sentence of life without parole to a juvenile, except in homicide cases. He also references a reply to my blog by Professor Robert George, who is, like Professor Garnett, a legal scholar. Unlike Professor Garnett, however, whenever I find myself in disagreement with Professor George me thinks I am on the right path.
As I made clear in my original post, I am not a lawyer and so I am no expert on legal reasoning. Professor George writes, "[Winters’] confidence [in his judgment of the case] is not disturbed, by the way, by his professed incompetence to judge the legal arguments. I guess they don't matter to him." If by this Professor George means that no one but a legal scholar is permitted to assess the basic justice of a court ruling, I will look forward to his making that point at next year’s annual March for Life. I deny the exclusive right to judgment by a priestly legal caste which alone can judge whether or not a given decision by the Court meets the standards of justice I think should be met. And every citizen has the same right to question the Court. As for Professor George’s condescending tone, what to say? If he were unable to write condescendingly, he evidently could not write at all. It is his only key.
You do not have to be a legal scholar to find yourself in agreement with this sentence from the concurring opinion of Justice Stevens, which was joined by Justices Ginsburg and Sotomayor, in reference to the dissenting opinion of Justice Thomas: "While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, see post , at 4, 10, n. 3, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so." Justice Scalia, too, believes that what matters in assessing whether or not a law coheres with the Eighth Amendment is simply a matter of deciding if the punishment was cruel and unusual when the Constitution was written. As Benjamin Wittes has written, with his characteristic wit, "as a textual matter, construing ‘cruel and unusual punishments’ as strictly as Scalia does is a little like construing the right to keep and bear arms as limited to such eighteenth-century firearms as muskets."
Professor Garnett disagrees with the policy at issue, but thinks it is not the place of the Court to decide if a policy is just or not, that such tasks are relegated to the legislature. It is a perfectly respectable argument, but not a definitive one. This commitment to judicial restraint is undoubtedly true about some policies, but the policy in question is about punishment, and the Constitution, which the Court interprets, guarantees you and me the right to be free from cruel and unusual punishment. I do not see why the legislature in Florida should receive carte blanche to decide what is and is not cruel anymore than I think they can decide what is, and is not, protected speech under the First Amendment. The Florida legislature, after all, did not do such a great job interpreting the requirements of the equal protection clause for many years.
I emphatically do not want the Supreme Court to yield its authority to interpret the guarantees in the Bill of Rights to any legislature. Is it really that hard to believe that a legislature could adopt a statute the plays well politically but which violates the constitutional rights of citizens? Or, that 37 state legislatures may have over-stepped into cruel, and therefore unconstitutional, territory? The judicial branch is the least responsive to popular opinion for a reason, because sometimes the mob seeks injustice, and the political branches cave. I think the Founders knew what they were doing in creating one branch that was removed far from the popular will.
Wittes’s problem with the Court’s Eighth Amendment jurisprudence is different from Garnett’s. Wittes does not deny a judicial role in deciding what constitutes cruel and unusual punishment, but he thinks the Supreme Court has muffed its job, that it has failed to apply a consistent principle for interpreting "cruel and unusual" and that this area of jurisprudence is the one in which the high court is the most likely to turn itself into a super-legislature, a phenomenon with unhappy consequences. He offers some guidance as to what such principles might look like and he does not insist they come from a legislature but be handed down as case law from the courts. Wittes has the better argument and his article linked above is a must-read of the topic interests you.
But both Wittes and Garnett seem less concerned with the actual outcome of a given case than with the legal reasoning that got us there. "In other words, how the court decides these cases — and most cases, for that matter — is ultimately more important than the substance of what it decides," Wittes writes. (This sounds suspiciously like what we were told in the 1970s when being taught "New Math" – we had to show our work and could get credit if we approached the problem correctly, even if the result we achieved was wrong. This New Math created a generation of mathematical illiterates like myself.) I am sure that such legal reasoning is important to Wittes, to Garnett, to George, and probably to the health and happiness of the Republic. But, I don’t suspect it was that important to Mr. Graham, the young man who was suing the State of Florida. He cried for justice and the Supreme Court rendered it to him. That is worth some applause, no? Someone, somewhere in our system has to serve as a check, not just on the other branches, but on the results. That role is sometimes played by the chief executive and other times by the Court.
If this be judicial activism, that’s fine by me. I will enjoy the irony of finding conservative commentators deploring this decision while their hands are still tired from applauding the judicial activism of the conservative majority of the Court in the Citizens United case. Besides, as a non-lawyer, I like it when the interpretation of the law gets a little messy. I appreciate the value of disinterestedness but also point out that judges are human beings too. If we ever compare the judicial process of interpreting of laws to the making of sausage, a comparison we make regularly to the legislative process, then judicial activism will have gone too far. But, if going too far is what it takes to give Mr. Graham his justice, let us not be afraid to go there.