The Volokh Conspiracy

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Conservative Justices Do Not Need To Apologize For Making Socially-Conservative Rulings

I'm looking at you Justice Kavanaugh.


Every year, I assign the Case of the Speluncean Explorers by Lon Fuller. In this classic article, hikers, who are trapped in a cave, resort to cannibalism. They are later charged with murder for eating one of their partners. The defendants were convicted in the lower court. The five judges on the fictional Supreme Court of Newgarth sharply divided over how to resolve the case. I assign this article to teach students about the different types of judicial philosophies.

Chief Justice Truepenny wrote the first opinion. He would have followed the plain text of the murder statute, and upheld the conviction. Yet, he seemed uncomfortable with the result. After all, it was unjust to prosecute people for murder who were on the verge of starvation. They killed to eat! At the end of his opinion, Truepenny urged the Chief Executive to grant clemency to the defendants:

In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive. . . . I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.

Justice Keen wrote a separate opinion. He too, would have upheld the conviction. In his view, the only question was whether the defendants' conduct was prohibited by statute. And it was. Yet, Justice Keen vigorously disagreed with the Chief Justices's clemency request:

I should like to begin by setting to one side two questions which are not before this Court. The first of these is whether executive clemency should be extended to these defendants if the conviction is affirmed. Under our system of government, that is a question for the Chief Executive, not for us. I therefore disapprove of that passage in the opinion of the Chief Justice in which he in effect gives instructions to the Chief Executive as to what he should do in this case and suggests that some impropriety will attach if these instructions are not heeded. This is a confusion of governmental functions—a confusion of which the judiciary should be the last to be guilty.

Alas, Justice Keen still conveyed wishes to the Chief Executive in his "private" capacity.

I wish to state that if I were the Chief Executive I would go farther in the direction of clemency than the pleas addressed to him propose. I would pardon these men altogether, since I believe that they have already suffered enough to pay for any offense they may have committed. I want it to be understood that this remark is made in my capacity as a private citizen who by the accident of his office happens to have acquired an intimate acquaintance with the facts of this case. In the discharge of my duties as judge, it is neither my function to address directions to the Chief Executive, nor to take into account what he may or may not do, in reaching my own decision, which must be controlled entirely by the law of this Commonwealth.

I always ask my students whether it is appropriate for judges to write, or even suggest, that a defendant in a case is worthy of executive clemency. Most students say the answer is no. The judiciary should follow the law, wherever it leads, and allow the other branches to do their jobs. Usually, students who are inclined to favor clemency also favor a reading of the statute that would reverse the convictions. In any event, few students will actually defend Justice Truepenny. This academic exercise is fun.

Yesterday, the exercise was not academic in Jones v. Mississippi. The very last paragraph of Justice Kavanaugh's majority opinion suggests that other branches of the Mississippi government should help the defendant, Brett Jones:

Finally, our holding today is far from the last word on whether Jones will receive relief from his sentence. Jones contends that he has maintained a good record in prison and that he is a different person now than he was when he killed his grandfather. He articulates several moral and policy arguments for why he should not be forced to spend the rest of his life in prison. Our decision allows Jones to present those arguments to the state officials authorized to act on them, such as the state legislature, state courts, or Governor. Those state avenues for sentencing relief remain open to Jones, and they will remain open to him for years to come.

Why? Why is this section necessary? The Supreme Court should focus on its own business, and let the other branches of state government do their jobs. Stay in your lane.

Indeed, the bulk of Part III of Justice Kavanaugh's opinion (p. 20-22) is utterly unnecessary. Why is it relevant how many people have benefited from Montgomery and Miller? Why should we care whether there is "agreement or disagreement with the sentence imposed against Jones"? That dispute is not before the Court. Why is it the Court's concern whether the states impose "additional sentencing limits in cases involving defendants under 18 convicted of murder." Of course there are 51 imperfect solutions. But it isn't the Court's job to speculate about hypothetical legislation.

In her dissent, Justice Sotomayor spikes this volley:

Having deprived Jones of his constitutional right, the Court gestures at a potential lifeline from other institutions, including the Mississippi Legislature or Governor. Ante, at 22. But "the remote possibility" of such action "does not mitigate the harshness of the sentence" that Jones now faces. Graham, 560 U. S., at 70. The Eighth Amendment guarantees juvenile offenders like Jones a basic constitutional protection against disproportionate punishments. The Court should not leave the vindication of such important legal rights to others, or to chance.

This sort of hand-wringing is, unfortunately, a common feature of Justice Kavanaugh's jurisprudence. In case after case where he reaches a socially-conservative rule, he apologizes to progressives.

I first noticed this sort of virtue signaling in the Maryland peace cross case. Part I of his concurrence was excellent. Part II was nauseating:

The Bladensburg Cross commemorates soldiers who gave their lives for America in World War I. I agree with the Court that the Bladensburg Cross is constitutional. At the same time, I have deep respect for the plaintiffs' sincere objections to seeing the cross on public land. I have great respect for the Jewish war veterans who in an amicus brief say that the cross on public land sends a message of exclusion. I recognize their sense of distress and alienation. Moreover, I fully understand the deeply religious nature of the cross. It would demean both believers and nonbelievers to say that the cross is not religious, or not all that religious. A case like this is difficult because it represents a clash of genuine and important interests.

We saw similar virtue signaling in the DACA case. Kavanaugh would have ruled against the Dreamers, but praised them.

For the last 20 years, the country has engaged in consequential policy, religious, and moral debates about the legal status of millions of young immigrants who, as children, were brought to the United States and have lived here ever since. Those young immigrants do not have legal status in the United States under current statutory law. They live, go to school, and work here with uncertainty about their futures. Despite many attempts over the last two decades, Congress has not yet enacted legislation to afford legal status to those immigrants.

And ditto for Bostock. He rejected Justice Gorsuch's reading of Title VII, but praised LGBT people.

Notwithstanding my concern about the Court's transgression of the Constitution's separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today's result. Under the Constitution's separation of powers, however, I believe that it was Congress's role, not this Court's, to amend Title VII. I therefore must respectfully dissent from the Court's judgment. 

In the past, Justice Kavanaugh checked his privilege in separate writings. But in Jones, this abjuration seeped into the majority opinion. I'm disappointed Justices Alito, Gorsuch, and Barrett joined the drecky Part III. Justice Scalia never would have joined it. Justice Thomas, I think correctly, argues that the majority misreads precedent. But I doubt Justice Thomas could have joined this pablum.

Conservative justices do not need to apologize for reaching socially-conservative results. Stop worrying about what other branches will do. The Governor of Mississippi can do his job without being nudged by the Supreme Court. Stop apologizing for the people you are ruling against. These "thoughts and prayers" will be cold comfort as Brett Jones spends the rest of his life in prison. Stop praising the people who are harmed by your ruling. The Dreamers facing deportation could care less about your view of State Farm.  This pseudo-empathy serves no purpose. Make your decision and own it.

One final note about virtue-signaling in Jones. Justice Thomas wrote a fiery footnote 2. He highlighted a linguistic inconsistency. When progressive Justices are writing about the Eighth Amendment, minors are called "children." But when writing about abortion, minors are "women." What could explain this disparate treatment?

The Court's language in this line of precedents is notable. When addressing juvenile murderers, this Court has stated that " 'children are different' " and that courts must consider "a child's lesser culpability." Montgomery, 577 U. S., at 207–208 (emphasis added). And yet, when assessing the Court-created right of an individual of the same age to seek an abortion, Members of this Court take pains to emphasize a "young woman's" right to choose. See, e.g., Lambert v. Wicklund, 520 U. S. 292, 301 (1997) (Stevens, J., joined by Ginsburg and BREYER, JJ., concurring in judgment) (emphasis added); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 899 (1992) (joint opinion of O'Connor, Kennedy, and Souter, JJ.); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 532 (1990) (Blackmun, J., joined by Brennan and Marshall, JJ., dissenting). It is curious how the Court's view of the maturity of minors ebbs and flows depending on the issue.

Justice Thomas had a similar linguistic tiff with Justice Ginsburg in 2019 concerning the word "mother" in abortion cases.