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November 9, 2009

Watching and wondering about the three SCOTUS newbies in Graham and Sullivan juve LWOP cases

As mentioned in this recent post, I am expecting (or at least hoping) that the big Graham and Sullivan SCOTUS cases to be argued this morning will not simply turn on Justice Kennedy as a swing voter in another 5-4 split.  I make this prediction in part because I am expecting (or at least hoping) that the three most recent additions to the Supreme Court could provide some new perspectives and some unexpected excitement in these cases.

I suspect lots of folks will be watching closely during Graham and Sullivan the newest member of the Supreme Court, Justice Sotomayor, because these juve LWOP cases are probably the highest profile constitutional criminal cases that SCOTUS will consider this year.  And, while watching Justice Sotomayor, I will be wondering especially about whether she is uniquely attentive to and uniquely concerned about the racial, ethnic and class disparities that often play a role in harsh juve sentencing realities in many states.

But, when I get a chance to read the Graham and Sullivan transcripts, I am going to be especially watching for any "tells" from Chief Justice Roberts and Justice Alito.  In most major death penalty and police practice cases, CJ Robers and Justice Alito have tended to favor broad government power (especially Justice Alito).  But the issues in Graham and Sullivan do not arise in settings in which prior rulings by the Warren and Burger courts have previously curtailed government authority.  Rather, Graham and Sullivan raise hard (and conceptually under-developed) questions about how federal courts are supposed to give meaning and content to the Eighth Amendment's prohibition on "cruel and unusual punishments" in non-capital settings.  Though CJ Robers and Justice Alito may not bring new jurisprudential perspectives in these cases, I am sure hoping they might.

Of course, SCOTUS watchers surely should keep an eye on the other six Justices in Graham and Sullivan.  The veryyoung age at which Joe Sullivan was given an LWOP sentence might even impact how Justices Scalia and Thomas look at the case, and the repeat and serious nature of Terrence Graham's crimes might impact how Justices Breyer, Ginsburg and Stevens sort through these issues.  And, Justice Kennedy could still be a key "swinger" in both Graham and Sullivan despite my speculation and hope that these cases do not fully turn on his constitutional instincts.  Indeed, Justice Kennedy may be the most interesting to watch because he authored the two most pertinent precedents in Roper and Harmelin.

I could go on and on and on about these cases because they implicate are sooooo many interesting matters of constitutional jurisprudence and sentencing policy.  (For example, I could do a number of posts simply concerning the decision by Obama's Justice Department to sit on the sidelines for this critically important issue).  But, upon completing this post, I think I am going to await having the chance to read the argument transcripts before saying more about Graham and Sullivan.

A few different older and newer posts on issues related to the Graham and Sullivan cases:

November 9, 2009 at 09:06 AM | Permalink

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Comments

The veryyoung age at which Joe Sullivan was given an LWOP sentence might even impact how Justices Scalia and Thomas look at the case

AHAHHAHAHHA. Oh that's good. And next you'll predict that Thomas will ask a question during oral argument.

Posted by: . | Nov 9, 2009 9:55:07 AM

Umm, weren't Scalia and Thomas okay with executing juveniles? And Alito is reflexively pro-government so I expect him to side with Florida here. I am not so sanguine that these cases won't come out 5-4. Perhaps if a member or two of the liberal bloc agree that death really is different.

What I see as possibly the worst outcome would be for a ruling saying 13 is too young but then dismiss Graham due to the procedural arguments.

The best argument against LWOP (or even being able to transfer juveniles to criminal court at all) would likely be based on how juveniles are treated in other matters. They are incapable or entering contracts and many other activities, yet in this one area we say they are fully an adult.

Posted by: Soronel Haetir | Nov 9, 2009 10:18:37 AM

@SH
"Umm, weren't Scalia and Thomas okay with executing juveniles?"

Not just juveniles, but 15 year olds (see Scalia's dissent in Thompson v Oklahoma). If he would give a 15 y/o the DP, I don't think he'd think twice about giving a 13 y/o LWOP.

"What I see as possibly the worst outcome would be for a ruling saying 13 is too young but then dismiss Graham due to the procedural arguments."

Unless something happened in between, why bother granting cert just to dismiss later on procedural grounds?

Posted by: . | Nov 9, 2009 11:09:00 AM

Unless something happened in between, why bother granting cert just to dismiss later on procedural grounds?

It does happen once or twice per Term. Sometimes, the Merits briefs illuminate a jurisdictional or procedural issue that wasn’t clear at the time cert. was granted.

Posted by: Marc Shepherd | Nov 9, 2009 12:00:52 PM

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