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May 17, 2010

Other than the holdings, what are the biggest "stories" of the Graham and Comstock rulings?

I have barely skimmed the Graham and Comstock rulings, and already I have so many thoughts about the holdings and their potential consequences (especially regarding future non-capital Eighth Amendment litigation).  But, before going too blog crazy, I am planning to head to a local coffee shop so I can read the full opinions without too many distractions and without getting my own views colored too much by what others start saying about these cases.  Yet I wanted to do this quick post to encourage readers to opine on what they think are some of the biggest "stories" emerging from the Graham and Comstock rulings.

My first take concerns the votes and authorship of various opinions in Graham.  First, that Justice Kennedy wrote the opinion for the Court is notable and important for various political reasons, and the fact that Chief Justice Roberts voted for the defendant (in order to make the head-count 6-3) seems to me to be especially notable and important for similar reasons.  Second, that Justice Sotomayor (and not Justice Breyer) joined the separate opinion of Justice Stevens strikes me as notable and important for jurisprudential reasons.

I could go on and make some similar observations about Comstock (which was authored by Justice Breyer with a Justice Kennedy concurrence and a Justice Thomas dissent).  But now I have to actually go read these opinions carefully (and then read whatever readers have to say in the comments) concerning what they think are the most important parts to what the Supreme Court did today.

Early posts on the Comstock and Graham rulings:

May 17, 2010 at 10:56 AM | Permalink


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In Alito's dissent in Graham, he notes that counsel conceeded that a 40 year sentence without the possibility of parole will "probably" be consitutional. Despite the Court's "bright line rule," how are courts to draw the line between sentences which are in effect life sentences (65 years? 70?) and permissible no-parole sentences? Actuarial tables? What if the non-homicide juvinile defendant is up for parole when she is 79 - is that any less disproportionate?

Posted by: What is life? | May 17, 2010 11:41:58 AM

I thought at first the Breyer opinion indicated the court would uphold the "honest services" part of mail fraud; however, Kennedy's concurrence seems to me written to suggest otherwise.

Posted by: Ed Unneland | May 17, 2010 12:26:19 PM

Thomas' dissent.

Sotomayor also joined Stevens' dissent in the cross case, showing a liberal streak, at least in some cases, that even Breyer did not show.

Posted by: Joe | May 17, 2010 1:45:51 PM

Justice Stevens' concurrence was very braod and dripped with reminiscence, looking back at the development of 8th Amendment law over the last 30+ years. The biggest point to me was Justice Sotomayor's decision to join what was clearly Justice Stevens' last, sweeping statement on the 8th Amendment. I see no reason why she would have joined unless it was to signal that she may pick up where he left off.

Posted by: A.Nony.Mous | May 17, 2010 1:49:54 PM

My bad. I missed Alito's brief dissent when I first read the opinions via .pdf file.

Posted by: Joe | May 18, 2010 9:33:18 AM

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