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February 25, 2016

Acknowledging and reflecting on the costs, both economic and emotional, that flow from proper implementation of Miller retroactively

This local article from Florida, headlined "Killer's brain development at issue in re-sentencing," provide a significant and sobering (and ultimately incomplete) account of the challenges many courts in many states are to face as they comply with the SCOTUS mandates in Miller and Montgomery that require the resentencing of any and every teen killer previously given a mandatory LWOP sentence.  Here are the basic details about this local case:

Maddie Clifton's killer will have his brain development reviewed by an expert before his re-sentencing hearing, a judge decided Thursday. Joshua Phillips, now 31, was convicted in the 1998 murder of 8-year-old Maddie and was sentenced to life without parole.  At the time of the murder, Phillips was 14....

The U.S. Supreme Court ruled in 2012 that automatic life without parole sentences for juveniles are unconstitutional. In 2015, the Supreme Court said that law applies to previous cases and that it is retroactive ....

“We have a duty to re-sentence the man and give him a proper opportunity,” Judge Waddell Wallace said in court Thursday.

Phillips' attorney, Tom Fallis, filed two motions with the court: one for a new sentencing hearing and another to have the court cover the costs of calling new experts to determine the proper sentencing.  Both motions were granted.

Fallis said some of the medical expertise from Phillips' original trial is no longer relevant, because of current research into juvenile psychology. "We're going to need a lot of experts," Fallis said. "This is going to be a very long hearing when it's set, and there will be evidence from what's happened in the last 20 years, what's happened in prison. I suspect there may be experts on prison life and how it affected a 14-year-old' who's now 30 some odd years old' and so the court needs to be educated. And the way you do that is through experts."

The state argued that calling new specialists and expert could be “absurd” and costly, but Wallace agreed to hiring a new expert and said the findings will be essential to the case, because of Phillips' brain development.

Police said Phillips, Maddie's neighbor, stabbed her and clubbed her to death in his San Jose area home. He hid her body under his waterbed in his room. Phillips' mother discovered the body a week later, after a massive search for the missing girl.  Phillips was convicted a year later.

I submitted amicus briefs in both Miller and Montgomery arguing for the Eighth Amendment rules as adopted and applied in those case, and I think it appropriate that this defendant finally have a chance for a discretionary sentencing hearing after he was decades ago mandatorily given an LWOP sentence for a crime committed at age 14.  And, though I am not quite sure this defendant really needs " a lot of experts" funded by the state to proceed with a proper resentencing, I also think it appropriate that the judge in this case recognized the need for giving the defense some additional resources to conduct a sound "Miller" resentencing.

That all said, I also think it appropriate for any and everyone like me who approved of the results in Miller and Montgomery to note and cope with the considerable costs that taxpayers and individuals are now going to have to endure.  Court resources are always finite, both in terms of time and money, and this press story highlights that it seems a significant amount of the limited court resources are now going to have to be devoted to the very challenging task of figuring out what now is a fair and effective sentence for "Maddie Clifton's killer," Joshua Phillips.  Moreover, and not mentioned in this story, I can only begin to imagine the emotional challenges that resentencing in this case will create for any and everyone connected to both the defendant and the victim.   

Though I continue to believe that mandatory juve LWOP sentencing is very wrong, this story is a reminder that it did have the notable virtue of being very easy. 

February 25, 2016 at 03:53 PM | Permalink


They could also give him the possibility of parole and solve the problem at a much cheaper cost.

Posted by: Erik M | Feb 25, 2016 3:58:07 PM

"They could also give him the possibility of parole and solve the problem at a much cheaper cost."

Maddie's parents deserve better.

Posted by: federalist | Feb 25, 2016 11:51:06 PM

"Moreover, and not mentioned in this story, I can only begin to imagine the emotional challenges that resentencing in this case will create for any and everyone connected to both the defendant and the victim."

But I thought that a chance at parole was in the victims' families interests? I am confused--shouldn't they be jumping for joy that their daughter's killer is getting the very bestest resentencing hearing?

Posted by: federalist | Feb 26, 2016 8:07:49 AM

We do not know what the victims now want, federalist, and a resentencing allows them to voice their views, whatever they might be. That process is sure to be emotionally chalenging for everyone involved (the point I was making in the passage you quote), but there is a possibility that that emotional challenge may prove cathartic for some.

Most critically, federalist, I never said (nor do I think I said something even meant to suggest) that ALL victims would welcome resentencings. But some do, as evidenced by the brief some filed in Montgomery: http://www.scotusblog.com/wp-content/uploads/2015/08/Montgomery_Victims-Family-Members-Amicus.pdf

Posted by: Doug B. | Feb 26, 2016 8:42:31 AM

Here we go again. And this is why I question your intellectual honesty on this issue and others. No one thinks that victims' families' interests as a whole were served, and since the Montgomery question is binary, the "well some victims families want this" is disingenuous. You tried to minimize victims' (as a whole) interests, and you do it now with the cathartic gambit.

"Most critically, federalist, I never said (nor do I think I said something even meant to suggest) that ALL victims would welcome resentencings. But some do, as evidenced by the brief some filed in Montgomery:"

And more disingenuousness . . . . we were talking about the victims' interests. And you did posit that retroactivity would serve victims' interests generally--which, of course, is utter nonsense. Now you say, gee federalist, I never said that ALL would welcome. But that wasn't my criticism--Mr. Strawman. Your position was basically--gee, we have all these people that did things when they were children, and lets have more accurate sentences and freedom and blah blah blah--when asked about finality, you said that sentences need to be more accurate (flawed reasoning there) and oh by the way, look over here there are some victims that want this, and it incents criminals to make amends blah blah blah. My response was that we need to look at victims' (and the states') interests generally (do you disagree with that--yes or no), and that finding a few here and there that side with their family member's (or members') killer and serving up "amends" was sophistry, not cogent argument. And now you distort that reasoned criticism into the charge that I said you argued that ALL victims would welcome this. Go back and read the back and forth.

My comment today was a snide jab at your earlier positions about the interests of victims' families. And you still don't get it. Perhaps, you're right that "voic[ing] their views" is something they will want to do, but the very strong likelihood is that they really don't want to have to go through with this.

These people have every right to have hatred for the 6 Justices that imposed this travesty on them. The Justices weren't just incorrect but morally wrong. Under our Constitution, the polity has the power to impose LWOP on killers like Phillips. It's harsh, of course, to do this, but the power is clearly there, except that the Justices don't like it. And that's really all it comes down to. And "little people" (I don't mean that perjoratively with respect to Maddie's parents) like Maddie's parents have to grin and bear it. Forgive me if I find this state of affairs repulsive and a stain on our polity.

Posted by: federalist | Feb 26, 2016 10:41:42 AM

Having been co-counsel for the prosecution on a case of a seventeen-year old who got life without almost twenty years ago (in a state with jury sentencing), I shudder at the difficulty of a new sentencing hearing. Given that the defendant fled the State, several essential witnesses are not from the area (and many might now be dead). If this case had arisen after Miller, the penalty phase would have been relatively easy to handle and the likelihood of the jury returning an lwop verdict on the very egregious facts would have been high. Having to try a new sentencing hearing based primarily on the transcript from the first trial (due to the unavailable witnesses), the new set of prosecutors will have a much more difficult time persuading the jury than we would have at the time of the offense.

Posted by: tmm | Feb 26, 2016 12:13:03 PM

Here we go again, is right, federalist, but with respect to how you misunderstand what I am trying to say AND improperly claim your own moral and policy views must be the only proper interpretation of the Constitution. Let me work backwards to try to add clarity:

1. Under our Constitution's 8th Amendment (as interpreted after incorporation), a state may not inflict "cruel and unusual punishments." If/when a judge/justice concludes a particular sentence inflicted amounts to "cruel and unusual punishment," then the state does not have the power to impose that sentence. Given the text of the 8th Amendment, how can you boldly assert that "the power is clearly there" to give a mandatory LWOP to a 14-year-old killer. You think state power should be there (apparently based on moral intuition). But a majority of the Supreme Court has now concluded that this exercise of state power is a violation of the Eighth Amendment.

2. You may think Miller's interpretation of the Eighth Amendment is just a matter of "judicial preference," but how else is one to interpret in concrete cases the meaning of vague phrases like "cruel and unusual punishment" or "unreasonable searches and seizures" or "excessive fines"? I can see how your contrary view is "federalist preference," but what is the sound argument based on the text or structure of the 8th Amendment that makes your judgment so obviously more right (and why did you not file an amicus brief to help the justices see this if it really is so "clear")? Put simply, the constitutional text here is vague and has been subject to debate/dispute for decades as to whether and when an LWOP sentence is "cruel and unusual" --- in light of this debate and the lack of determinative text, I heartily dispute your claim that "the power is clearly there."

3. You should not blame the "Montgomery 6" for this particular retroactivity decision: the Florida Supreme Court decided Miller was retroactive for Florida cases via Falcon v. Florida, No. SC13-865 (Fla. March 19, 2015). You can, of course, blame the Miller 5, but at least be sure, federalist, to aim your shots at the proper judicial messenger.

4. I "get" that one can reasonably say that victims generally prefer finality and generally do not want to have to go through with Miller resentencings. Indeed, the main post here is more proof I "get" this. But one can also reasonably say, in the words of a brief filed by some victim groups in Montgomery, that "Retroactive Application of Miller Will Honor Victims’ Lost Loved Ones by Affording Every Child Sentenced to Mandatory Life in Prison the Opportunity to Demonstrate Remorse, Redemption, and Rehabilitation." And, more to the most critical point of all of this, at issue in Montgomery --- and in any case dealing with similar retroactive application of constitutional rights held by criminal defendants --- is NOT whether and how we can have "victims' families' interests as a whole [be] served." Not only was that not the central question in Montgomery, I find it hard to find any provision of the Bill of Rights that textually supports a clear claim that "victims' families' interests" should be a fundamental part of constitutional analysis. (This is one reason I generally support federal and state statutes (and/or constitutional amendments) that clearly spell out the scope and limits of victims' rights and how these rights generally ought to be applied. It is also a reason I generally support legislatures providing funds not only for victim services, but also for victims to be able to hire lawyers to help enforce their rights.)

5. I know you do not think the concept of "accuracy" makes sense in the sentencing arena, federalist, and I would benefit from knowing what other word you think more properly captures the concern of accuracy that has historically been stressed in retroactivity analysis. I also would be grateful to get you to better explain your views on this front when others make forceful assertions (particularly at C&C) about certain sentences being ("clearly") wrong.

Posted by: Doug B. | Feb 26, 2016 12:54:50 PM

"If/when a judge/justice concludes a particular sentence inflicts to "cruel and unusual punishment," then the state does not have the power to impose that sentence. Given the text of the 8th Amendment, how can you boldly assert that "the power is clearly there" to give a mandatory LWOP to a 14-year-old killer. You think state power should be there (apparently based on moral intuition)."

Doug, apparently you've never heard of the term "ipse dixit"--LWOP for juvenile murder sans "special hearing" was constitutional forever until it was determined not to be. As a matter of power-judging, you are right--if the Court says X, X is so. But if we're talking in terms of what judges ought to be doing, Montgomery and Miller are hard to justify, unless you just think that courts get to do what they want.

You say you "get", but then why did you try the sophistic defense tactic in earlier threads of pointing to a small minority of victims' views in an effort to blunt the force of the finality argument?

My view is not moral---I just think the constitution does not forbid juvie LWOP generally, so states are free to impose it.

As for victims' interests--I agree that they are not generally an issue in con law interpretation--they ARE an issue when looking at the discretionary decision to make a particular judicial opinion retroactive or when granting a stay of execution. Why don't we start by getting that right? Finality, Doug, sweeps up victims' interests. And since we're in the realm of power-judging, I'd argue that they should start to be taken into consideration.

And for Pete's sake Doug, Kennedy himself, the author of Montgomery didn't question mandatory LWOP for juveniles in the Simmons case. This is just made up crap. Dressing it up as a justice "conclude[ing]" as if it's anything more than a naked policy preference is laughable.

Posted by: federalist | Feb 26, 2016 1:54:10 PM

federalist, a few clarifications in the name of legal accuracy:

1. LWOP for juvenile murder has not been "constitutional forever" because the very concept of LWOP did not really exist until many jurisdictions began eliminating parole in the 1970s AND the abolitionist crowd started peddling LWOP as an alternative to the death penalty. Juve LWOP could not really be a subject of constitutional dispute until juves started getting LWOP. You can accurately say that juve death penalty was "constitutional forever" until Simmons.

2. At issue in Simmons was juve DP, not mandatory juve LWOP. And all Kennedy said in Simmons of not on this front is: "To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person." That statement is hardly an assertion that mandatory LWOP for juveniles is consistent with the Eighth Amendment.

3. According to the first part of the Montgomery ruling (which included CJ Roberts), the retroactive application of substantive constitutional limits on punishment is NOT purely a matter of "judicial discretion." Are you asserting federal judges could refuse to retroactively apply a substantive constitutional limit on punishment as a matter of discretion? I raise this point because, as I think we both know, SCOTUS retroactivity doctrine exists in a funny netherworld as perhaps constitutionally required and perhaps not. Danforth and Montgomery both raise more question than they answer, though notably neither stands for the proposition that finality interests are any kind of constitutional trump.

Finally, not a clarification but a question: How do you distinguish "power-judging" from interpreting the Constitution? Are 1st A rulings striking down statutory limits on violent video games or crush videos an example of "power-judging" or interpretation? How about all the recently contested 2d A rulings in lower courts after Heller? How about Jones or Kyllo or other tough 4th A cases? Or Apprendi, Blakely, Booker, Allenye concerning the 5th and 6th Amendments?

For the record, I think "what judges ought to be doing" when in comes to interpreting and applying the Bill of Rights' various limits on government power is .... doing their best to wisely interpret and apply the Bill of Rights' various limits on government power. That seems to me what they are doing in Miller and Montgomery, as is true in cases like Heller and Jones and Blakely and other big contested cases about vague provisions of the Bill of Rights. In all these discussions, I never get any understand what you mean by terms like "power-judging" or "what judges ought to be doing" beyond the sense that you want judges always doing what you think they ought to do.

Posted by: Doug B. | Feb 26, 2016 5:17:16 PM

1. Um Doug--when was Montgomery sentenced to LWOP? Not 1970s.

2. To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person." That statement is hardly an assertion that mandatory LWOP for juveniles is consistent with the Eighth Amendment. What? Yeah, it was unthinkable when Kennedy conjured up Simmons that LWOP would be subject to this weird substantive right to being not incorrigible. That's what his statement means.

3. Montgomery's result was discretionary. Bottom line.

Apprendi isn't hard, btw.

Posted by: federalist | Feb 26, 2016 6:30:47 PM

And, by the by, death was ok for juveniles since 1789--which means a lesser punishment would have been ok.

Posted by: federalist | Feb 26, 2016 8:44:22 PM

1. Montgomery first got DP in 1960s, it got converted to LWOP after a retrial and may well have been the first juve LWOP sentence in the nation. (Also, the SCOTUS ruling in 1983 in Solem certainly gave states some notice that extreme use of LWOP could be unconstitutional.)

2. Kennedy indicated LWOP for juves would be available (which it still is), not that it could be mandatory.

3. Having your hands chopped off is also a lesser punishment than death, but that does not mean it is not cruel and unusual under the Eighth Amendment.

4. Still waiting to hear how power judging is different than regular judging.

Posted by: Doug B. | Feb 26, 2016 11:25:17 PM

See Thaler v. Buck, (Sotomayor "wise [sic] Latina", dissenting). See ACA decision and "established by a State".

Doug, Montgomery was sentenced over four decades ago.

Your hand chopped off example is silly--for self-evident reasons.

Posted by: federalist | Feb 27, 2016 8:40:27 PM


power-judging = decisions federalist does not like


an example that shows a federalist assertion is plainly wrong = example that is self-evident silly

I never cease to be impressed and amused, federalist, how many blustery and misguided claims seem so clear to you that ultimately mystify me and likely others who do not share your way of thinking.

Posted by: Doug B. | Feb 28, 2016 9:46:28 AM

No Doug, I've explained how dumb Sotomayor's Buck v. Thaler dissent is numerous times.

And as for why cutting off hands is unconstitutional shouldn't need explanation to a HLS grad and law prof.

Posted by: federalist | Feb 28, 2016 1:49:10 PM

Calling one particular decision "dumb," federalist, falls far short of explaining how power judging is different than regular judging. You indicated Miller involved "power-judging" as opposed to "what judges ought to be doing." I remain eager to understand what this distinction means OR you can just confirm my sense of these semantic: decisions federalist dislikes = power-judging; decisions federalist likes = regular judging.

On the subject of dumb, meanwhile, did you not understand that I referenced cutting off hands as unconstitutional to highlight that, just because death "was ok for juveniles since 1789," that fact plainly does not automatically mean "a lesser punishment would have been ok."

Posted by: Doug B. | Feb 29, 2016 12:18:47 AM

Doug, mutilation is not in our constitutional tradition--whereas imprisonment for life would never have been considered unconstitutional. That's why. That I have to explain that is stunning.

As for power-judging, see Scalia's Dickerson dissent. It explains what it is.

And can you defend Sotomayor's position in Buck v. Thaler?

Posted by: federalist | Feb 29, 2016 8:27:41 AM

Once again, federalist, as I press you to better explain your assertions, the more clear it becomes that they are based in rank ignorance. Assuming you agree Thomas Jefferson counts as part of our "constitutional tradition," you should know he very much thought mutilation was a proper punishment, as evidenced by his advocacy for mutilation as punishment:

Thomas Jefferson, A Bill for Proportioning Crimes and Punishments (1778):

"Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro' the cartilage of her nose a hole of one half inch diameter at the least....

"Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury...."

Put simply, federalist, brutal physical punishment (including death) are part of our historical constitutional tradition, but LWOP is a modern phenomenon. That fact alone does not resolve its constitutional status, but it does show that what you are "stunned" to have to "explain" actually reveals that your are stunningly oblivious to how ignorant you truly are in some arenas.

That I was finally able to expose your ignorance after a long back-and-forth here, federalist, is why I so often press you to try to explain what you mean (not what Scalia has to say) when you use oblique terms like "power judging." I fear that here, too, ignorance rather than wisdom serves as the foundation for your beliefs, claims and assertions.

Posted by: Doug B. | Feb 29, 2016 10:26:58 AM

Ouch! That's going to leave a mark.

Posted by: MarK M. | Feb 29, 2016 10:47:08 AM

Oh good grief. Do I really really need to explain to a law prof why the "hands cut off" example doesn't get it done? First of all, mutilation is completely different from incarceration. Do I really need to explain why? Second, let's look at the nature of parole, as a constitutional matter, it is entirely discretionary, thus, without question, a life sentence would have been ok in 1789 (although the framers would have wondered, why not kill the person), and it CANNOT be the case that the possibility of a discretionary decision to let someone out is what made it constitutional back then. Third, term of years sentences that exceeded natural life spans weren't unconstitutional. Fourth, dying in prison and affirmatively being put to death in prison seem pretty much on the same continuum, so the lesser being ok when the greater is ok seems apt here. Fifth, the issue is whether the Constitution bans the practice, not whether it is silent. The Constitution is silent on the Administrative State---no one's arguing that means it is unconstitutional.

You can cite TJ all you want, but the reality is that even giving you the benefit of the doubt, juvenile LWOP is 50 years old. 50. And we just figured out that somehow the Framers banned it?

Dickerson is power-judging.

Posted by: federalist | Feb 29, 2016 12:08:44 PM

I assume you realize, federalist, that SCOTUS decided in the first significant set of non-capital cases applying the Eighth Amendment in the early 1980 that the availability of parole did make one punishment constitutional and another one unconstitutional (Compare Rummel v. Estelle and Solem v. Helm). So, what you say "CANNOT be the case" has been established constitutional law for 30+ years.

The Constitution is not "silent" here: it expressly bans infliction of cruel and unusual punishments. And the Supreme Court, when finally taking up the issue in Miller, decided that giving mandatory LWOP to a 14-year-old killer without even allowing a sentencer to consider his age/maturity in the sentencing process involves the infliction of a cruel and unusual punishment. Now, after you have made a lot of mistaken statements to try to support your assertion that this ruling is "clearly wrong," I wish you be willing finally to concede that the heart of your argument is "I think Miller should be considered 'clearly wrong'."

The reason I keep harping on you here, and keep being eager to highlight all the factual mistakes you make when trying to explain your assertions, is that I get so very tired of folks on BOTH sides of the political aisle saying silly stuff to the effect of "the judges I like are 'good/real judges' who faithfully 'do what judges ought to be doing,' whereas the judges I do not like are 'bad/phony judges' who engage in naughty 'power-judging' rather than proper judging." Put differently, I wish both sides would admit the obvious: exercising judgment in hard cases is hard and every judge has distinct personal and professional histories and interests that will necessarily influence how judgment is going to be exercised.

Posted by: Doug B. | Feb 29, 2016 1:09:17 PM

Argh, Doug, I am fully aware that in Solem (I think) that one of the things that pushed towards the side of constitutionality was the fact that parole was available. But Doug, wasn't that case the utterance of a bad check by a recidivist? In other words, totally not what we are talking about. In all honesty, I was going to go into that case, but I was banging something out and didn't want to look it up, but decided not too because I was talking about what the framers would think, n'est-ce pas? Go back and re-read what I wrote. But really Doug, is that what you have, something that saved a facially harsh punishment for a minor crime? Really?

Miller is clearly wrong--for a number of reasons:

1) It's BS law that the Justices' own moral compass (vice that of the polity) is what counts.
2) The 8th Amendment is not a code of procedure, and that whole "can't take into consideration" thing is procedure.
3) Juvenile LWOP (or term of years beyond natural lifespan w/o parole eligibility) was unquestionably constitutional up until a few years ago.
4) There is no principled way to square the fact that juvenile DP was good to go up until what, 1989 (16) and 2005 (all juveniles) which therefore means that the lesser punishment of guaranteed life incarceration has to have been constitutional.

Really, all you got is Solem??

Doug, as I have explained to you before, remember, 8th Amendment "jurisprudence" imports the Justices' personal preferences. They themselves have said it--ipso facto, that is "power-judging". They have enshrined a policy preference for the considered judgment of state legislatures. All you're doing is saying, well, they said so, so therefore it is right. Hey, you want judges to make stuff up--fine. I don't.

Posted by: federalist | Feb 29, 2016 4:32:17 PM

I will not robustly dispute, federalist, that modern Eighth Amendment jurisprudence imports the Justices' "personal perspectives" --- I resist the word preferences here largely because I have little notion of their genuine personal preferences (e.g., I somewhat doubt it was really CJ Roberts' preference in Montgomery to give all the old juve LWOPers new hearings.) But this, in my view, is a product of their judicial obligation to give content and concrete application to all the vague provisions of the Eighth Amendment's important but opaque limitation on government power. The Eighth Amendment is so hard --- as Justice Scalia was known to admit --- because originalism does not get you very far AND it would seem misguided to state that this provision places no limits on any duly-enacted punishment.

Do you really believe, federalist, the Justices define the limits of government power based on any of the Amendment without generally "making stuff up" as they go along? Isn't it fair to say a whole bunch of stuff gets "made up" in modern First Amendment jurisprudence (as they make up tests for defining pornography or establishment of religion), and modern Second Amendment jurisprudence (as they make up limits on who gets there rights and what arms are covered), and modern Fourth Amendment jurisprudence (as they make up reasonable suspicion standards and eliminate warrant requirements), and modern Fifth Amendment jurisprudence (most of "substantive due process"), and modern Sixth Amendment jurisprudence (when counsel rights and jury rights attach). Indeed, I could add modern Ninth, Tenth and Fourteenth Amendment jurisprudence to that mix, too, of course, because anyone who sees the jurisprudence limiting state powers on all these fronts wax and wane throughout the years has to understand that the personal perspectives of Justices influence their judging.

I suppose I need to just give up trying to help you see that we are all (or at least all should be) legal realists in this modern era. Critically, being a legal realist does not mean one needs to be a "crit" and say all law is just cover for politics. The reasoning/rule of law and the voting/force of politics have distinct spheres. But to assert, as you often seem eager to do when you complain about decisions you disagree with in this space, that one set of judges is being faithful to doing "what judges ought to be doing," whereas others are engage in naughty "power-judging," strikes me as both facile and naïve. And I really do not think based on your comments, federalist, they you are truly either facile or naïve. 'nuff said --- at least until our next comment war.... ;-)

Thanks, as always, for the engagement!

Posted by: Doug B. | Feb 29, 2016 6:14:38 PM

Solem? Really?

Posted by: federalist | Mar 1, 2016 8:59:23 AM

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