Analyzing the cert grants in both Graham and Sullivan

Over at SCOTUSblog, Lyle Denniston has this interesting new post titled "Analysis: Why two juvenile sentence cases?". Here is a snippet of Lyle's analysis:

With a continuing wave across the country of tougher punishment for youths who commit serious crimes, the Supreme Court on Monday returned to the constitutional controversy that the wave has stirred.  The Court took on two new juvenile sentencing cases that, seemingly raises the same issue, but apparently left itself the option of treating them differently.  It did not explain, but a few reasons may be suggested....

It is quite common for the Court, when it has two or more cases raising the same issue, to pick only one for review, or to consolidate them for a joint ruling. It took neither option this time, setting the stage for two rulings, perhaps with different potential outcomes.

[T]here is at least a chance that Sullivan might not be allowed to raise his constitutional argument, because it could be found to have come too late.  The Graham case only involves the specific issue of an Eighth Amendment violation in a life without parole sentence for a minor.  Thus, the Court may have wanted a second case before it in case it should find that Sullivan did not present that claim properly.

Another difference between the two, of course, is the youths’ relative age.  The Court, if it reached the life sentence issue in Sullivan, might be more sympathetic to a youth of his age getting a life term for a sexual crime that left the victim injured, but not dead.  The Court last Term ruled out a death sentence for such a crime (in Kennedy v. Louisiana, involving a child victim who was not killed).

Graham, by contrast, is four years older, and was given a life prison term after returning to criminal activity after being spared a long prison term for an earlier episode.  Some members of the Court may have found him a less sympathetic figure, and wanted to have that case on the docket to perhaps limit the scope of any ruling that went against life terms for teenagers.

Indeed, it might be speculated that the Court spent most of a month looking at these two cases as it tried to sort out just what it wanted before it, and the grant of both cases might well have been a compromise between the Court’s two ideological wings.  The Court has been split deeply in its most recent rulings limiting the scope of the death penalty, and there is no reason to anticipate a more unified bench on this new controversy involving life without parole — a severe sentence for a minor.

The Court will hold oral argument on the two cases in the Term starting Oct. 5, very likely in tandem hearings on the same day.

I think all of Lyle's speculations for why the Court decided to take up both Sullivan and Graham make sense, and I was prepared to predict split rulings were in the works when I first saw that the defendant in Grahamwas 17 at the time of his LWOP sentence.  However, the procedural quirkiness surrounding the imposition of an LWOP sentence in Graham (discussed here), as well as the fact that Sullivan involves a first-offense rape and Graham involves second-offense robbery, makes me wonder if some other factors played a role in the decision of SCOTUS to set up a juve LWOP double-header.

Other posts today on Sullivan and Graham:

• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Grahamjuve LWOP case
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?