Questioning forceful (but suspect) claims by the varied Miller dissents: Alito/legislative judgment concerns

As previously explained here, in a series of posts I am trying to explain briefly what I see as a suspect judgment or assertion or conclusion at the heart of each dissenting opinion to the Supreme Court's recent Eighth Amendment SCOTUS Miller ruling (opinion here, basic questions here and here and here).  In the first post here, I questioned number-crunching in the Roberts/textualism dissent.  In the second post here, I questioned claims about LWOP as a method of punishment in the Thomas/originalism dissent.  This final post in the series now will question the core lament in Justice Altio's dissent that the Miller majority is to be faulted for "arrogation of legislative authority" by countermanding "questions of sentencing policy to be determined by Congress and the state legislatures."

Justice Alito's Miller dissent, which intriguingly was joined only by Justice Scalia, merits praise at the outset for his effective review of modern Eighth Amendment jurisprudence with a special focus on how the "staple of this inquiry was the tallying of the positions taken by state legislatures." He concludes this review by lamenting where he sees the Miller majority taking this jurisprudence: "What today’s decision shows is that our Eighth Amendment cases are no longer tied to any objective indicia of society’s standards.  Our Eighth Amendment case law is now entirely inward looking."

For starters, as a matter of Eighth Amendment interpretation and broader constitutional theory concerning the limits imposed on legislatures by the Bill of Rights, one might reasonably respond to Justice Alito's laments here by saying simply "So what?"  Rarely does anyone assert or even suggest that interpretations of the individual rights protected by the First or Second or Fourth or Fifth or Sixth Amendments should be concerned principally with "tallying of the positions taken by state legislatures."  Indeed, Justice Alito's own votes to find violations of the Bill of Rights in cases like Citizens United (involving the First Amendment) or McDonald (involving the Second Amendment) or Jones (involving the Fourth Amendment) seem based on his own "inward looking" judgments about the reach of these constitutional provisions without any serious inquiry into or evident concerns about "the positions taken by state legislatures" as to campaign finance or gun control or GPS tracking. 

Though there is a textured history of "state-by-state head-counting" in the Supreme Court's modern Eighth Amendment cases, the constitutional soundness of this approach to interpreting a Bill-of-Rights limit on legislative power has always seemed suspect to me.  Our constitutional structure with judicial review arguably not only reasonably expects, but arguably demands, judges to make certain constitutional judgments about individual rights by "looking inward" to define counter-majoritarian principles enshired in the Constitution.  To assert in this context that judges ought always embrace and endorse whatever majoritarian legislative judgments find expression in a good number of states is a recipe for making the Eighth Amendment almost nonjusticiable.

Moreover, even if one embraces the notion that legislative judgments merit special respect and deference in the application of the Eighth Amendment, one still must concede that judges have some independent (aka "inward looking") work to do here. Justice Alito acknowledges as much via key language (which I have highlighted) at the start of the penultimate paragraph of his dissent: "The Eighth Amendment imposes certain limits on the sentences that may be imposed in criminal cases, but for the most part it leaves questions of sentencing policy to be determined by Congress and the state legislatures — and with good reason."

Perhaps because I cannot recall a single Eighth Amendment case in which Justice Alito has found there to be an Eighth Amendment violation, I am left wondering just what Justice Alito considers to be the "certain limits" imposed by the Eighth Amendment which require judges, for some part (but not "the most part), to remove questions of sentencing policy from elected lawmakers.  In other words, while Justice Alito uses language that concedes judges are to impose some kind of ("inward looking") limits on criminal punishments, he has never provided any indication or even a hint of what he thinks those Eighth Amendment limits might be.

Finally, Justice Alito's complaints about the purported "arrogation of legislative authority" seem especially misguided in the context of a Miller ruling in which not a single Justice declared per se unconstitutional any LWOP sentence for a juvenile murderer.  Rather, the ruling in Miller invalidated only mandatory LWOP sentences, which really serves only to vindicate judicial authority in light of the reality than mandatory LWOP schemes only apply if and when prosecutors exercise their broad discretion in certain ways.  (Notably, one does not hear -- especially from former prosecutors like Justice Alito -- any serious laments that prosecutors are arrogating legislative authority in this realm if and whenever they seek temper the application of mandatory punishment schemes through use of their discretionary (and entirely unreviewable) charging and bargaining powers.)

Given that mandatory sentencing schemes are never really mandatory for executive branch prosecutors and especially given that Miller just requires that the judicial branch have some decision-making role in juve LWOP sentencing systems, I do not find especially convincing Justice Alito's contention that Miller involves the Supreme Court countermanding "questions of sentencing policy to be determined by Congress and the state legislatures."  Rather, I think Miller is more accurately viewed as an effort by the Supreme Court to make sure judges, and not just prosecutors, get to make some judgment about whether a juvenile's crime is so awful that he ought never even get a chance to seek release from prison.  In other words, Miller really seems to involve the Court countermanding -- justifiably, in my view -- judgments as to sentencing procedure rather than as to matters of sentencing policy as lamented by Justice Alito.

Related post in this series and other notable posts with opinions on Miller:

• Questioning forceful (but suspect) claims by the varied Miller dissents: the Roberts/textualism numbers
• Questioning forceful (but suspect) claims by the varied Miller dissents: the Thomas/originalism methods
• Criticism of Justice Alito's one-size-fits-all dissent in Miller
• Guest post on Miller from Jennifer Bishop Jenkins, President of the National Organization of Victims of Juvenile Lifers