How Should Justices Judge?

Striking a balance between liberal and conservative legal theories

In the confirmation hearings for Elena Kagan, Americans will hear a debate over how to interpret the Constitution. On one hand are conservatives who preach strict adherence to the framers' intent. On the other are liberals who see a flexible entity that must adapt to a changing world.

But you don't have to wait to assess the competing theories. Rarely have they been more starkly opposed than in the Supreme Court verdict that life without parole may not be imposed on juveniles who have not killed. And rarely has each side done a better job of exposing its own flaws.

The case involved Terrance Graham, a Florida juvenile jailed for an attempted armed robbery. Upon his release, the 17-year-old took part in an armed home invasion. Exceeding the recommendation of prosecutors, a judge gave him life without parole.

But that sentence, concluded the Supreme Court, violated the Eighth Amendment ban on "cruel and unusual punishments." Five justices said putting a minor away for life is always excessive, and another (Chief Justice John Roberts) agreed it was in this instance.

The verdict exasperated Justices Clarence Thomas and Antonin Scalia for the simple reason that the life sentence "would not have offended the standards that prevailed at the founding." Besides, Thomas wrote, the Eighth Amendment was meant to bar forms of punishment that involve torture, not penalties that are merely disproportionate to the crime.

But as Justice John Paul Stevens pointed out, Thomas and Scalia "would apparently not rule out a death sentence for a $50 theft by a 7-year-old," which according to them was permissible in 1789.

Executing a second-grader for stealing a video game, while insisting the penalty is not cruel and unusual? An interpretive approach that leads to such ludicrous conclusions has no real use. This single dissent cruelly exposes the limits of the "original intent" school.

Justice Anthony Kennedy's majority opinion, however, does nearly as much damage to his subjective style of interpretation. It's larded with value judgments that seem only vaguely connected to constitutional principles and precedents.

He complains that with a life-without-parole sentence, "the state makes an irrevocable judgment about that person's value and place in society." He laments, "A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity."

So? Where does the Constitution guarantee violent felons the opportunity to "demonstrate growth and maturity"? Or the right to regular reassessments of their "value and place in society"?

A few years ago, the court wisely prohibited the death penalty for adolescents. "The most severe punishment," said Kennedy then, is appropriate only for criminals mature enough to be guilty of "extreme culpability." But now, without a persuasive explanation, the next most severe punishment is also off the table.

Most likely it should be, and Roberts' concurring opinion did a far better job of explaining why. He made a strong case that the combination of Graham's age, the uncommon severity of the punishment, and Florida's relative leniency toward adult murderers made the sentence indefensible.

This judicious argument by Roberts, a conservative, offers a way between Thomas' rigid obedience to ancient assumptions and Kennedy's indulgence of personal impulses. A similar one, from a liberal perspective, can be found in David Strauss' succinct and elegant new book The Living Constitution.

The author, a law professor at the University of Chicago, advocates a "common-law" mode of judging. It rests on respect for the essential principles of the framers and for past decisions by courts applying those principles to new circumstances.

This is "the constitution as it actually operates, in practice," Strauss writes. "On a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy."

Judges can't escape value judgments, but they have to make them humbly and carefully, following text and traditions. The framework not only accords with good sense but, writes Strauss, "restrains judges more effectively than originalism."

Making sense of the Constitution is not a matter of simple equations, as Thomas would suggest, nor of following one's own desires, as Kennedy seems to believe. Judges have to be guided by the past, with a full understanding of the present.

Does that sound like an imperfect formula? It is, but not as imperfect as some others.

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