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Sotomayor Pens ‘Brutal’ Dissent by Repeatedly Citing Kavanaugh Back at Himself as Conservative Majority ‘Guts’ Precedent in Juvenile Punishment Case


The Supreme Court of the United States on Thursday significantly rolled back the rights of juvenile offenders sentenced to life without parole.

Justice Brett Kavanaugh delivered the opinion of a 6-3 conservative majority over the objection of Justice Sonia Sotomayor, who was joined by liberal colleagues Justices Stephen Breyer and Elena Kagan in a “brutal” dissent that repeatedly cited Kavanaugh’s own words back at him.

The facts of the case stylized as Jones v. Mississippi are fairly straightforward: Brett Jones killed his grandfather by repeatedly stabbing him with knives over a domestic dispute involving his then-girlfriend in 2004; the killer was only 15 years old at the time. He was convicted of murder and sentenced to life without parole–which was then mandatory under Mississippi state law.

Jones eventually appealed his sentence after two key Supreme Court decisions offered him a potential way out of his life behind bars.

In 2012, the high court decided Miller v. Alabama which held that mandatory life prison sentences for minors are unconstitutional.

Jones was then granted a re-sentencing hearing where the judge considered his youth but ultimately gave him the same sentence.

In 2016, the high court decided Montgomery v. Louisiana which held that their holding in Miller was retroactive due to the substantial constitutional issues at stake. Again, Jones appealed, arguing that the combined holdings in Miller and Montgomery meant a judge must abide by stringent standards when sentencing minors to life.

“According to Jones, in order to impose a life-without-parole sentence on a defendant who committed a murder when he or she was under 18, the sentencer must make a separate factual finding that the defendant is permanently incorrigible,” Kavanaugh noted. “The Mississippi Court of Appeals rejected Jones’s argument, relying on this Court’s express statement in Montgomery that ‘Miller did not require trial courts to make a finding of fact regarding a child’s incorrigibility.’”

In other words, Jones argued his second sentencing hearing was constitutionally defective because the judge did not issue an on-the-record finding that he was a permanently incorrigible–a threat to public safety. According to Jones, such an explanation must be made either explicitly or implicitly by a sentencing judge.

The Mississippi Court of Appeals disagreed with Jones.

Kavanaugh’s majority opinion echoed that disagreement:

The problem for Jones is that Miller and Montgomery squarely rejected such a requirement. Miller mandated “only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing” a life-without-parole sentence. Montgomery then flatly stated that “Miller did not impose a formal fact finding requirement” and that “a finding of fact regarding a child’s incorrigibility . . . is not required.”

“In a case involving an individual who was under 18 when he or she committed a homicide, a State’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient,” the majority explained in a separate section of the opinion.

The dissent, however, read both the Miller and Montgomery precedents completely–fundamentally–differently.

“Today, the Court guts Miller v. Alabama and Montgomery v. Louisiana,” Sotomayor’s often furious formal disagreement began. “Contrary to explicit holdings in both decisions.”

To hear the dissent tell things, the court’s prior opinions in this area of the law have an “essential holding” that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.'”

In other words, Sotomayor et al. believe that a judge’s discretionary sentencing mandate under Miller and Montgomery must be more than a pro forma affair and therefore must entail a vigorous interrogation of a defendant’s potential in order “to separate those juveniles who may be sentenced to life without parole from those who may not.”

The dissent’s reasoning was largely premised on the following passage from Miller: “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.”

“[Kavanaugh’s] conclusion would come as a shock to the Courts in Miller and Montgomery,” Sotomayor accused.

The dissent went on to cite Kavanaugh and other members of the majority back at themselves to make her point.

Early on, Sotomayor wrote:

[T]he Court reduces    i to a decision requiring “just a discretionary sentencing procedure where youth [is] considered.” Such an abrupt break from precedent demands “special justification.”  i, 590 U. S. ___, ___ (2020) (KAVANAUGH, J., concurring in part). The Court offers none. Instead, the Court attempts to circumvent stare decisis principles by claiming that “[t]he Court’s decision today carefully follows both Miller and Montgomery.” The Court is fooling no one. Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent.

“Rather than read Miller and Montgomery fairly, the Court reprises Justice [Antonin] Scalia’s dissenting view in Montgomery that Miller requires only a ‘youth-protective procedure,'” the dissent argued. “Justice Scalia’s view did not prevail, however. Montgomery’s interpretation of Miller is binding precedent, just as Miller itself is.”

The problem, Sotomayor claimed, isn’t just the court’s departure from precedent but how the court chose to depart.

Again, the dissent cited Kavanaugh:

The Court offers no such justification today. Nor could it. The traditional stare decisis factors include the quality of the precedent’s reasoning, its consistency with other decisions, legal and factual developments since the precedent was decided, and its workability. See Ramos, 590 U. S., at ___ (opinion of KAVANAUGH, J.) None supports overturning Miller or Montgomery.

“The Court knows what it is doing,” Sotomayor continued. “It admits as much. Rather than try to harmonize its decision today with Montgomery’s retroactivity holding, it confesses in a footnote that its rewriting of precedent is inconsistent with Montgomery and basic retroactivity principles.”

The decision, the dissent bristled, was an attempt “to bury” the prior holding–in egregious violation of stare decisis.

Sotomayor cited Kavanaugh twice more for good measure:

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.). 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). 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.) .

Sotomayor’s dissent did not go unnoticed online.

[image via Chip Somodevilla/Getty Images]

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