Why did Montgomery v. Louisiana even reference "a finding of fact regarding a child's incorrigibility"?

I think a Kagan time bomb from 2012 fizzled after Justice Kennedy retired.


Yesterday, the Supreme Court decided Jones v. Mississippi. The question presented was "Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole." The key word here is "incorrigible." In other words, is the juvenile incapable of being reformed? The 5-4 Court answered this question no. Justice Kavanaugh wrote the majority opinion. He concluded that two recent precedents, Montgomery v. Louisiana (2016) and Miller v. Alabama (2012), do not require a finding of incorrigibility. Justice Sotomayor dissented, and was joined by Justices Breyer and Kagan. The dissenters argued that Montgomery and Miller did impose a finding of incorrigibility. Justice Thomas concurred in judgment, and would have overruled Montgomery.

I am not interested in debating whether the majority or dissent accurately read Montgomery. As a general matter, I presume any Justice Kennedy 5-4 decision is on the chopping blocks. The Court will either limit the precedent to its facts, or stealthily overrule it. My goal here is different. Why did Montgomery even make a reference to incorrigibility? None of the parties briefed that issue. It only came up briefly during oral argument. How did that phrase became the basis for a followup Supreme Court case? Here, I think a time bomb was planted in 2012 that fizzled out.

Let's start at the beginning. In 2012, the Court split 5-4 in Miller v. Alabama. Justice Kagan wrote the majority opinion. She concluded that the Eighth Amendment bars a sentence of mandatory life in prison without the possibility of parole for juvenile homicide offenders. The case only had one reference to "incorrigibility." Justice Kagan wrote:

Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes. . . . Similarly, incapacitation could not support the life-without-parole sentence in Graham: Deciding that a "juvenile offender forever will be a danger to society" would require "mak[ing] a judgment that [he] is incorrigible"—but " 'incorrigibility is inconsistent with youth.' " 560 U. S., at ___ (slip op., at 22) (quoting Workman v. Commonwealth, 429 S. W. 2d 374, 378 (Ky. App. 1968)).

Graham held that the Eighth Amendment does not permit life without parole for nonhomicide crimes. Miller, which concerned mandatory LWOP for homicide crimes, cited Graham's discussion of incorrigibility. But incorrigibility was in no way essential to the holding of Miller.

Fast-forward four years. Justice Kennedy wrote the majority opinion in Montgomery v. Louisiana (2016). This case held that the rule in Miller was retroactive. Once again, incorrigibility played no role in the litigation. I searched all of the briefs. None of the parties mentioned the word "incorrigible" or "incorrigibility." Four amicus briefs briefly referenced incorrigibility: ABA, ACLU, Equal justice Initiative, and the Charles Hamilton Houston Institute. But none of these briefs suggested that a finding of incorrigibility should be required to sentence a juvenile defendant to LWOP. Rather, each citation merely quoted from Justice Kagan's Miller opinion.

During oral argument, only one Justice referenced incorrigibility. You guessed it. It was Justice Kagan. She invoked this concept in an exchange with then-Louisiana outside counsel, and now-Judge Kyle Duncan.

JUSTICE KAGAN: There -- there is -- there is a process component of Miller, no question about it, where the Court says what courts are supposed to look at is -- are the characteristics of youth and are supposed to try to figure out whether these terrible crimes are functions, in part, of immaturity or -- or -- or not, whether you -- you really are looking at an incorrigible defendant. So there is that process component.

The majority opinion in Montgomery had two references to incorrigibility. These references provided the basis for the question presented in Jones v. Mississippi. Here is the first passage:

Louisiana suggests that Miller cannot have made a constitutional distinction between children whose crimes reflect transient immaturity and those whose crimes reflect irreparable corruption because Miller did not require trial courts to make a finding of fact regarding a child's incorrigibility. That this finding is not required, however, speaks only to the degree of procedure Miller mandated in order to implement its substantive guarantee. When a new substantive rule of constitutional law is established, this Court is careful to limit the scope of any attendant procedural requirement to avoid intruding more than necessary upon the States' sovereign administration of their criminal justice systems.

This carefully crafted sentence is quite unclear. It can be read in one of two ways. First, Miller "did not require trial courts to make a finding of fact regarding a child's incorrigibility." Justice Kavanaugh adopted this reading. Second, the Miller Court did not require the sentencing court in that case to make this finding because of the unique posture of Miller–that is, "in order to implement its substantive guarantee." But this requirement should be understood as part of the rule in Miller going forward. Justice Sotomayor adopted this latter reading. Again, I am not concerned with whether the majority or dissent is correct. My concern is different. Why was this sentence from Montgomery written in such a strange fashion:

Louisiana suggests that Miller cannot have made a constitutional distinction between children whose crimes reflect transient immaturity and those whose crimes reflect irreparable corruption because Miller did not require trial courts to make a finding of fact regarding a child's incorrigibility.

Of course Miller imposed no such requirement. Yet this sentence was written. Why? My theory: to allow a future Court to adopt what would become Justice Sotomayor's reading of Montgomery and Miller.

Montgomery made one other reference to incorrigibility:

Miller, it is true, did not bar a punishment for all juvenile offenders, as the Court did in Roper or Graham. Miller did bar life without parole, however, for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility. For that reason, Miller is no less substantive than are Roper and Graham.

Again, I do not think this statement is a fair reading of MillerMiller did reference Graham, but did not adopt incorrigibility as part of the test. Still, the sentence is written vaguely enough to be understood in different ways.

In his concurrence, Justice Thomas refers to Montgomery's reading of Miller as "Janus-faced"

In a similar Janus-faced demonstration, Montgomery reiterated Miller's assurance that "trial courts [need not] make a finding of fact regarding a child's incorrigibility," yet decided that "Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption."577 U. S., at 209–211.2 These statements cannot be reconciled. 

My tentative conclusion is that this "incorrigibility" language was a time bomb. Professor Rick Hasen explains that a "Time bombs exist when Justices include within a case subtle dicta or analysis not necessary to decide it with an eye toward influencing how the Court will decide a future case."

Let's roll the clock back a decade. At the time, those seeking to abolish juvenile LWOP had as strategy. Indeed, the progression of the LWOP cases was predictable. First, hold that mandatory LWOP cannot be applied to non-homicide juvenile crimes. (Graham in 2010). Second, hold that mandatory LWOP cannot be applied to juvenile crimes at all. (Miller in 2012). Third, hold that mandatory LWOP rule is retroactive. (Montgomery in 2016). Fourth, make it even harder for courts to impose LWOP as a matter of discretion. The precise contours of Stage 4 were negotiable. The abolitionists are predictable–at least while Justice Kennedy was the 5th vote. Way back in 2012, it would have been clear what stage 4 would be. We now know that the progressives would never get to stage 4 because the composition of the Court changed. But that fact wasn't known in January 2016 when Montgomery was decided.

Flash back to Miller (2012). I think the language about incorrigibility was inserted as a time bomb for stage 4. And in Montgomery (2016), a very strange sentence was written about incorrigibility, even though none of the parties briefed the issue. Again, that sentence was to set up the stage 4 end game. Alas, that end game was snapped out of existence when Justice Kennedy retired. Or, to quote Justice Sotomayor, "half of [Miller's] reasoning" was blipped. Thanos. Now, the new Roberts Court can simply adopt the reading of that sentence that is consistent with precedent.

Who planted the time bomb? RBG was notorious for burying those devices, like in CLS v. Martinez. But here my money is on Justice Kagan. She wrote Miller. She brought up incorrigibility during oral arguments in Montgomery. It is entirely plausible that during the drafting process, Justice Kagan nudged Justice Kennedy to include the incorrigibility analysis as a setup for the end game. Justice Brennan was the master of time bombs. And I often compare Kagan to Brennan. When I read that strangely crafted sentence, I see Justice Brennan wrangling over the language with an eye to the future. Alas, the Montgomery time bomb fizzled out when the fifth finger vanished.

Of course, this entire post is mere speculation. Fun speculation. But speculation.

NEXT: The Plutocrats, the People, and the Globalization of World Soccer

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  1. “Justice Thomas concurred in judgment, and would have overruled Montgomery.”

    Talk about juvenile incorrigibility…

      1. And had that 16-year-old disembowled the girl in pink, she’d be claiming this as well…

        1. All three missed the joke/point, which was about Thomas’ eccentric proclivity to write ‘I would have overruled this based on my dissent three precedents ago!’

    1. You are a pro-criminal, pro-serial killer Democrat. Jeff Dahmer was doing his thing at age 10.

      1. Half as coherent as a rabid cat, twice as mean.

    2. Nothing wrong with reminding them they are still wrong.

    3. Comments appear to be closed so I’m going to leave this here. The reason for the apology at the end of Kavanaugh’s opinion, is because he knew what he was doing was wrong. It’s called a pang of guilt, aka a guilty conscience. As a Catholic he can’t escape it, the nuns made sure of that, but he can try to crush it to stone. He’s trying to mitigate which tier he will live out his eternal life. Can you blame him really?

  2. “I presume any Justice Kennedy 5-4 decision is on the chopping blocks. ”

    When America’s betters enlarge the Supreme Court, those chopping blocks will be less attractive to the clingers.

    1. When America’s betters open up the gas chambers, America will be a lot less attractive to leftists.

      1. Surpise, racialist cretin pines for gas chambers.

        Some things never change.

        1. Guillotines are actually my top choice for traitors.

          1. Of course, you Nazi types are usually enamored with blood stuff.

        2. I pine for Chinese re-education camps for all America hater, pro-criminal Democrats. You would have to listen to lesbians with a crew cut expounding on loyalty to America.

          1. If you wrote your comments in Chinese they would make as much plain English sense as they do now.

          2. Yeah, but if they can’t be reeducated, more drastic measures need to be taken.

            1. Maybe the could be ‘concentrated’ into something like ‘camps’ as part of the more final solution you’re envisioning, amirite?

              1. Already concentrated in hellish camps. These are euphemistically called NYC and San Fran.

  3. “Fun speculation.”

    Yes. Fun is definitely a word a normal person would use to describe the weighty topic of life sentences for juvenile offenders.

    1. Thomas correct as usual.

      1. Bob a sadistic ghoul as usual.

        1. Sadistic would be executing the perps — which wouldn’t be a bad idea…

          1. Incredible. You acknowledge something is sadistic and then you endorse it anyway.

            1. Execution of murderers after trial is not sadistic. Its justice.

              1. Would it bring you joy and pleasure to see a child die, yes or no?

                1. “joy and pleasure”

                  I think you have me mistaken with the murderers. They are the ones who find joy and pleasure with killing.

                  1. You didn’t answer the question. I’ll ask it more bluntly would you be happy to see a child convicted of murder strapped to a gurney and injected with a lethal cocktail of drugs seize up and gasp for breath for several minutes before dying while his family watched, yes or no?

                    1. Given that the “family” would likely consist of a single mother only 17 years older than the perp and maybe a grandmother, absolutely!

                    2. Aktenberg considers his streak of moral depravity and psychopathy I see.

                    3. *continues. Not considers. If he was capable of considering it, he would likely reform himself into a better person. But since that hasn’t happened yet I can only assume he hasn’t considered it.

                      Damn autocorrect.

                    4. “I’ll ask it more bluntly”

                      I have no obligation to respond to your stupid, virtue signaling question. I could ask you if you are happy to see brutal murderers escape justice? Your outrage is misplaced, these “kids” are not worth your compassion.

                      I do oppose use of lethal objection. Firing squads and hanging are more appropriate.

                    5. LTG,

                      A hypothetical for you.

                      Two 17 year olds break into your house, and proceed to rape, maim, and murder you and your teenage daughters. You’re left with 2 dead daughters, 1 who is maimed for life, and you yourself have been maimed.

                      Then then give up to the cops saying “They just wanted to see what it was like, and it was fun, and they know they’re kids so they can’t get the death penalty. But they look forward to getting out and “finishing the job”.

                      What should happen?

                    6. Life in prison with parole eligibility after several decades.

                    7. So, you’re OK with someone who murdered your daughter getting out after 25 years? At the age of 42?

                  2. I have no obligation to respond to your stupid, virtue signaling question.

                    You don’t want to respond because the answer puts you in a negative light, and you know it.

                    “I could ask you if you are happy to see brutal murderers escape justice?”

                    I am not. I just recognize that execution and LWOP don’t necessarily deliver justice, often just more pain than is necessary. Whenever I watch someone be remanded for a lengthy sentence, even if it is absolutely deserved, there is a pain in my heart and soul because pain and suffering are not things to celebrate.

                    “Your outrage is misplaced, these “kids” are not worth your compassion.”

                    Every human being deserves my compassion, even if they must be incarcerated for a long time. Hell, even you deserve my compassion.

                    1. You feel compassion for these guys?

                      “The four men took turns raping her. After they were done, the militiamen inserted into her genitals a hot metal rod that burned her uterus.” https://www.msn.com/en-us/news/world/a-tigrayan-womb-should-never-give-birth-rape-in-tigray/ar-BB1fTMAv

                      Not Americans but a good chance some of these monsters are “kids” since “soldiers” in Africa are pretty young.

                      “pain in my heart and soul because pain and suffering are not things to celebrate”

                      You are weak and pathetic. You dismiss the pain and suffering of the actual victims but cry for their killers. And pat yourself on the back as well.

                    2. “You are weak and pathetic. You dismiss the pain and suffering of the actual victims but cry for their killers. And pat yourself on the back as well.”

                      Oh fuck you. You don’t think my heart hurts when I see devastated families of murder and rape and assault victims? When I had to see the images of two teenage gun violence victims on the autopsy table, the life drained from their face, their body riddled with bullet holes from a psycho who shot them in the back? You think I don’t grieve when I listen to a rape victim or the parent of a dead child or the kids of a dead parent? Fuck you.

                      You are the weak and pathetic one. You’re the tough guy who has the most bloodlust and everyone is going to recognize how tough he is because he isn’t afraid to call for the most extreme and barbaric punishment. But it’s a weak position. It shows a corroded soul who thinks empathy and caring is a scarce resource.

                      You too sit smugly and pat yourself on the back for your supposed toughness, even though its just sadism. Incarceration is often necessary and appropriate. But it isn’t to be celebrated, and whether it is always and forever appropriate in a particular case should always be questioned.

                    3. “You are weak and pathetic. ”

                      Classic fascist talk from our classic fascist.

                    4. “Oh fuck you.”

                      So brave. So tough. Knows bad words.

                      You called me a “ghoul” and said I enjoyed seeing kids dying. Now so butt hurt that I eventually responded in kind.

                      You are a fool as well as being pathetic.

                    5. There is nothing weak or pathetic about having emotions and being cognizant of others pain. I’ve faced my own possible death and had to learn to walk again, so I think I understand something about the subject of pain.

                      Because I am acutely aware of the amount of trauma a human body can experience, I tend to be compassionate when any human is going to suffer anything. And to question whether that suffering must be permanent. That’s not weak or pathetic.

                      If you don’t want to be called a ghoul and for me to take an adverse inference from your refusal to answer whether you would enjoy watching a juvenile be executed, maybe you should try to appear less ghoulish and sadistic.

                    6. “There is nothing weak or pathetic about having emotions and being cognizant of others pain.”

                      Or in recognizing the growing science of differences in young persons and adults that have traditionally mattered in weighing culpability in the common law tradition.

                      But I don’t think many modern conservatives like Bob care much about tradition in general, they’re more like reverse Jacobins.

                    7. “reverse Jacobins”

                      Thermidorians. Curb the excesses of the left, end criminal terror.

              2. Kids, Bob.

                Your justice is from a couple of centuries ago.

                1. Murderers, Sarcasto, not “kids”.

                  1. That’s not how age and time work. Even though they commit murder they are still kids.

                    1. they forfeited their privileged status as children when they intentionally took another life.

                      They are adults in fact if not in arbitrary age.

                    2. You don’t know what a fact is, do you?

                    3. Fine, de facto rather than de jure.

                    4. “They are adults in fact if not in arbitrary age.”

                      Science be damned, things are black or they are white!

                2. Killers.

                  They did some things right in the 1700s and 1800s.

                  1. Yeah, but you like killing. You talk about how you want to do it to people all the time.

                    1. Do you really not see the difference between war and non-war?

                    2. What war? That’s all in your head, dude. You’re just saying there is a “war” so you can justify your mass-murder fantasies. You’re no different than any other murderous freak in terms of rationalizations for killing.

              3. And yet Dr. Ed expressly described it as such before endorsing it, thereby somehow lowering the floor of the sub-basement of moral degradation that defines his existence.

                1. HTML doesn’t support a font for sarcasm.

    2. That’s being too hard on Blackman. The law, like many areas of politics and public policy, is a hobby as well as being a serious matter. And to those of us who follow appellate law, it is, in fact, a source of intellectual stimulation.

      Nobody doubts that the results of these cases are extremely important to the people bound by whatever legal rules SCOTUS imposes. But that does not mean the enterprise of receiving intellectual stimulation from appellate litigation is bankrupt or insensitive to the real world impacts.

      1. This would be a more fair criticism if I ever got the sense from any post that Josh ever considered real-world impacts besides political point scoring, pedantry, and inside baseball.

    3. Life sentences for juvenile offenders who MURDER others may be weighty, but their victims are DEAD….

      1. And ruining another life won’t bring them back.

        1. I’m genuinely curious— what do you think a just system would do to someone like Mr. Jones?

          1. 1. Permit him the opportunity (not even the guarantee) to demonstrate his fitness to return to society.

            2. Serve the length of a sentence, that is terms of total years, is around what the average-aged person who committed a similar crime would likely actually serve.

            Let’s say the average LWOP prisoner dies in prison at 75. And the average LWOP prisoner is 25 at the time of sentence, so we’re looking at on average of 50 years actually served. The sentence for a juvenile offender shouldn’t be higher than that.

              1. That you’re trading outrage porn with Aktenberg should tell you a bit about where you live, Bob.

                No one said back on the streets.

                1. “No one said back on the streets.”

                  When he gets parole, is he going to fly to a deserted island?

                  1. If and when he gets parole, he ain’t be the same person he was.

          2. Hey noscitur –
            Prison, with regular evaluations to see about reform. Especially for those under like 22, there’s a lot that can change over time.

            Of course, a prison that’s a lot less awful and bend more towards reform than the current status quo.

        2. We can’t bring back the dead. The only way to protect us from murderers striking again is execution. If we can’t do that, and Roper says we can’t based on their birthday, then the next best thing is life in prison. We’re all safer because Jones will never be free, just not as safe as he would be if he was executed.

          1. Yeah, until the “life in prison” becomes “not life in prison” because a Democrat Party governor commutes their sentence.

            1. Yes I’m sure Trumps pardons, by contrast, where totally appropriate.

              1. Did he pardon any violent criminals?

        3. “ruining another life ”

          Why punish at all then? 50 years in prison will “ruin” a life too.

          1. Lots of reasons to punish. Your revenge-as-justice is not one of them.

            1. “Make no mistake, it’s not revenge he’s after. It’s a reckonin’.”

              1. Yeah…that’s meaningless. A Western revenge fantasy is deeply weird to bring into a conversation about the judicial system.

                Also, of course, in that movie the a bad guys still were an active threat.

  4. As if anyone expects logic or reason from any SC ruler anymore.

    1. Disaffected, obsolete right-wingers are among my favorite culture war casualties.

  5. I think Blackman’s right about this.

    These time bombs are the way doctrine gets advanced from case to case. And sometimes they don’t explode, for whatever reason.

  6. There is a certain sense of irony in 4 catholics holding that people can be incapable of reform. Doesn’t that defeat the whole point of catholicism?

    And yes, justices shouldn’t insert their views, blah blah blah, but … the 8th amendment is written for judges to make a judgment call. What exactly is cruel is what the judges deem to be cruel. The whole “appeal to congress” isn’t good enough because the whole point of the clause is to protect criminals from the legislature.

    And why shouldn’t judges make value calls at times? Justice Breyer is the one who said you cant leave your own head. If you think something is cruel than it is. For all the overblown and ridiculous talk of a theocracy … idk I would hope that if a an amendment explicitly asks you to make a moral judgment …. you probably should.

    1. Cruel is what these perps did to the parents of their victims.

      1. Yeah I agree. So? Scripture says anyone can be capable of reform. All sins can be forgiven. Including the most cruel and horrible.

        There is a difference between serving the appropriate punishment and saying someone either can’t be reformed or punishing them out of bloodlust or anger.

        It is my view you punish people not because you hate them but because you love them, despite their crimes, and you hope that they learn from their mistakes and to reform, and to protect everyone else from them.

    2. “4 catholics holding that people can be incapable of reform” No. They held that capability of reform is immaterial to the constitutionality of a sentence. Leave it to the policy makers to decide whether it’s a good idea or not.

      1. Which … ok, but isn’t the whole point of having the 8th amendment … any amendment really, that leaving this sort of thing to policy makers is not a very good idea?

        1. The original public meaning conception of the 8th amendment makes it lack any point.

          1. Yeah, ‘cruel and unusual’ is a lot like ‘reasonable,’ it’s silly to think these don’t change with time (and increased information, technology, context, etc.,). The Founders were quite aware that what they considered cruel was different (more humane they would have thought) than what the past did, they knew this was a moving target inherently.

            Consider, if we now, via different knowledge about the biology and psychology of children and such, determined that LWOP for them was cruel we would need to, according to this reading of originalism, simply pass the Amendment with the *exact same language* as it already has and presto it would apply to different things (after all, what we think of as cruel and unusual now would be different even though the words, the concepts, haven’t changed and exact same words would be as fitting).

            It’s a nonsense idea.

    3. “What exactly is cruel is what the judges deem to be cruel.”

      It means exactly what it meant in 1789. We executed juveniles, sending them to prison cannot be “cruel and unusual”.

      “Since 1642, in the Thirteen Colonies, the United States under the Articles of Confederation, and the United States under the Constitution, an estimated 364 juvenile offenders have been put to death by the individual states (colonies, before 1776) and the federal government. ” https://en.wikipedia.org/wiki/Capital_punishment_for_juveniles_in_the_United_States

      1. *cruel and unusual under the Eighth Amendment as understood by some public meaning originalists.

        It is cruel and unusual in terms of how prevailing moral opinion across the world.

        1. Sounds like time to propose a constitutional amendment then. If you can’t get agreement on the amendment, your thoughts on the prevalence of the “moral opinion” may be mistaken.

          1. The Amendment would literally be the Eighth Amendment, verbatim, passed again.

            1. Yeah thats the thing … is it really necessary to pass the exact same language, again? I dont think originalism calls for that.

              1. I mean if original public meaning is determined with reference to founding era practice completely divorced from a prevailing notion of what constitutes cruelty, then yes. If original public meaning is just dictionary definitions or a Balkin-esque high level of generality, then not necessarily.

        2. “in terms of how prevailing moral opinion across the world”

          That is not part of the 8th Amendment, as you well know.

          “across the world”

          Most people across the world live in dictatorships.

          Their opinion is meaningless.

          1. “Most people across the world live in dictatorships. Their opinion is meaningless.”

            The founding generation lived in a slaveholding society but you are holding up their opinion of what constitutes cruelty as sacrosanct.

            You’re looking for any excuse to dismiss the prevailing moral opinion on executing juveniles as meaningless because you know deep down that the one you have is morally wrong. It’s so morally wrong, in fact, that all those evil dictatorships you don’t want to listen to have outlawed the execution of juveniles.

            1. Since you think “prevailing moral opinion” allows for gay “marriage,” you really don’t have any credibility on this.

              1. You saying I don’t have any credibility on moral issues is basically an endorsement of my position, so thanks.

              2. What exactly does that have to do with the 8th amendment?

                1. Because if you think it’s morally acceptable for a homosexual man to sodomize another dude in the rear, it means your moral code is so off that the rest of you supposed morality should be dismissed as well.

                  1. So not just a fascist but some puritan fundamentalist on sex too. Fits.

                    I’m reminded of hanging out with a bunch of co-students at my undergrad college. One girl styled herself as conservative and when the subject of oral sex came up she said ‘eww, that’s wrong.’ ‘What’s wrong with it?’ someone said. ‘it’s not natural so it’s wrong.’ ‘Not natural? Well, the relative parts seem to amply be fitted for one another, what’s unnatural about it?’

              3. The world’s “prevailing moral opinion” on gay marriage is it is immoral and bad.

                He only calls on “prevailing moral opinion” when he thinks it supports his position.

                1. Or he thinks “prevailing moral opinion” is limited to other leftist Western democracies. Which is very bigoted and close-minded of him of course.

      2. Except it doesn’t. In the same way the first amendment is not limited to pen and paper. Originalism does not work that way. Even Thomas notes that the term cruel and unusual can evolve. He defines it as whatever the modern understanding of torture is, and the terms apply to torture because that was the definition at the founding. But what consists of “torture” can and does change.

        In other words, what the terms apply to is constant, but the meaning is meant to change. The founders just took the works from old British texts. Shall we defer to them, the time when people were beheaded?

        After all, doesn’t the word “unusual” mean not commonly done? Not commonly done compared to what, exactly? Compared to what IS commonly done TODAY. In the same way the right to keep and bear arms apply to modern firearms.

        Words can retain their meaning and be applied to new contexts. The word cruel was meant to invite some discretion.

    4. I’m far from an expert in Catholic dogma (since it is, of course, made up), but does it in fact state that criminals’ redeemability in the afterlife should spare them from punishment by secular authorities?

      1. The Catholic church’s belief in forgiveness and redemption is I believe in large part responsible for the child abuse scandals.

        Forgiveness and redemption is the business they are in. It is not the business of the government or the judicial system.

        1. And why shouldn’t it be? What exactly is the purpose of the justice system anyhow? Is it not to remove people from society who commit crimes and to rehabilitate them?

          And the fact that forgiveness can be abused does not mean, in our daily lives and in our government, we should abandon forgiveness as a concept. I mean the sadism of some of these commentators is absolutely absurd.

        2. Not an expert in Catholicism either, but it strikes me that forgiveness and redemption are statements about human nature generally, not solely the spiritual part of human nature.

  7. Speaking of “time bombs”, how about the one in _Baake_?
    We’re *still* dealing with that jem.

    I don’t recall conservatives ever resorting to this tactic…

  8. This is just a mountain of wasted breath over whether incorrigible is a magic word. Miller makes it clear the Court in considering LWOP for a juvenile you have to consider “the wealth of characteristics and circumstances attendant to” youth. Miller, 567 U.S. at 476-77. This characteristics and circumstances unquestionably include consideration of whether the offender is less culpable based on immaturity and whether the youth of the offender makes them more likely to be rehabilitated.

    I am unenthused that the trial court didn’t seem to discuss the possibility or likelihood of rehabilitation in his findings. I think it should have been reversed, but that a specific finding of incorrigiblity is not required under Miller, only that the possibility of rehabilitation needs to be considered in particular due to the youth of the defendant.

    1. Yeah, magic word jurisprudence is always highly questionable.

      To the extent lower court judges have to play this game, they should just issue pro forma “I hereby find [DEFENDANT] name incorrigible based on the facts established in this case.” If SCOTUS has a problem with that, then fine, they can draft further opinions explaining what the definition of incorrigible is. Really curious what the leftist side of the branch would come up with for, “Yes, he murdered his grandfather in cold blood and then tried to hide the body, BUT…”

    2. In it’s evaluation I believe the court should include the seriousness of the crime, the culpability of the defendant as well as the possibility of reform. Some crimes are so horrific there really should be a severe penalty.

  9. “As a general matter, I presume any Justice Kennedy 5-4 decision is on the chopping blocks”

    If only that were true. I would love the court to overrule Obergefell and Windsor, and then have every conservative state retroactively void every gay “marriage” that took place during those regimes, just to sit back with popcorn as the liberal whining commenced.

    1. Enjoying the sufferings of others is very on brand for you.

      1. Oh, poor homosexuals wouldn’t get a piece of paper to show that society approves of their unnatural sodomy! Poor babies!

        1. I am grateful to the Volokh Conspiracy for exposing the unvarnished bigotry of conservatives to a broader audience (people who generally do not get to observe right-wingers’ genuine positions in the “safe spaces” of private homes, Republican Committee meetings, and Klan gatherings).

  10. Excuse me, lawyer dumbass, but 14 is adult, according to nature, to the religions of the world, and to 10000 years of human civilization. Only the rent seeking lawyer keeping superior, top performing beings out of the job market believes the arbitrary, made up age of 18 is adult.

    1. Not to mention that if said 14 year old wanted to kill her baby, then suddenly, it would be her “choice.”

      1. Thomas has a footnote to his concurrence. He points out the cases call teenage minors “children” when the justices want to ban execution or LWOP but “young women” when they deal with their “right” to get an abortion.

    2. “but 14 is adult, according to nature”

      Sure, science shows no significant differences in 14 year olds and adults. Derpity-derp!

    3. but 14 is adult, according to nature

      This has some…implications.

      1. The biggest implication? Superior performers are kept out of the job market to avoid competung with inferior lawyer clients.

        1. Age of consent, dude.

          Maybe slow your roll.

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