Another Spin of the Stare Decisis Broken Record

And Justice Sotomayor invites sentencers to "continue applying" Montgomery and Miller "faithfully," even if the majority did not.

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I have written two posts about arcana in Jones v. Mississippi. Here, I will focus on the most important jurisprudential aspect of the case: stare decisis. Going forward, Justice Kennedy's 5-4 progressive decisions should no longer be treated as precedential. For sure, the Court will not overrule those cases. There is no need to. Instead, the Court will limit those cases in the most narrow fashion possible. The dissent will carp about stare decisis. And the majority will simply move onto the next case. Justices Breyer, Sotomayor, and Kagan should create a macro to save time on writing these dissents. And they will keep spinning the same broken record over and over again.

In Part II.C of her dissent, Justice Sotomayor plays the greatest hits. She cites Chief Justice Robert's concurrence in June Medical. Justice Alito's majority opinion in Gamble. Justice Kavanaugh's concurrence in Ramos, and his plurality in AAPC. So far, Justice Sotomayor treads familiar ground.

But then the dissent takes an unusual turn. Justice Sotomayor intimates that lower courts should follow Miller and Montgomery "faithfully," even if the Court narrowly confined the scope of those decisions:

For present purposes, sentencers should hold this Court to its word: Miller and Montgomery are still good law.6 See ante, at 19 ("Today's decision does not overrule Miller or Montgomery"). Sentencers are thus bound to continue applying those decisions faithfully. Thankfully, many States have already implemented robust procedures to give effect to Miller and Montgomery. In other States, the responsibility falls squarely on individual sentencers to use their discretion to "separate those juveniles who may be sentenced to life without parole from those who may not." Montgomery, 577 U. S., at 210. Failing to do so violates the EighthAmendment. 

Let's put into perspective what is going on here.

The Court adopted a very, very cramped rule reading of Montgomery, such that a sentencer need not make a finding that the defendant is "incorrigible." But the Court declined to overrule Montgomery. Justice Thomas accurately described the majority: "Montgomery gave a good-for-one-ride ticket to a class of juvenile offenders, and its errors will never be repeated." Justice Sotomayor disagreed with that reading of Montgomery. She concluded that the Eighth Amendment demands a finding of incorrigibility. And because Montgomery was not overruled, a sentencer should still adhere to Justice Sotomayor's reading of Montgomery. Why? The failure to follow that reading would violate the Eighth Amendment. After all, judges take an oath to the Constitution, and not to the Supreme Court. Wow!

When I read this passage, my mouth dropped to the floor. It is difficult for a Supreme Court decision to shock me. I am often disappointed, but usually I can predict the general range of possible decisions in advance.The last time I was this shocked was when CJ Roberts overruled Korematsu in the travel ban case. (I was in the Court during the handdown). Did not see that one coming. And before 2018, the last big shocker was probably NFIB v. Sebelius.

Here, Justice Sotomayor has opened an entirely new front in the battle over stare decisis: if the Roberts Court is unwilling to formally overrule a precedent, then lower courts should still follow those decisions "faithfully." Truly, this proposition is remarkable. Justice Sotomayor is inviting trial courts to engage in a judicial resistance of Jones. Yes, I used the phrase judicial resistance. Unless the Court is willing to bite the bullet and formally overrule the precedent, judges should still follow a rejected-reading of Montgomery and Miller. The antidote to stealth overruling is stealth underruling: lower courts should quietly fail to give a new Supreme Court precedent its fairest reading, in order to preserve a now-rejected reading of an older precedent.

This invitation is quite crafty. Let's say a sentencer declines to sentence a juvenile defendant to LWOP because the defendant is not incorrigible. That decision can be baked into the broader element of "discretion." Could an appeals court reverse a sentence, because the Supreme Court held that incorrigibility was not required? Of course not. A factor may not be required, but a judge, in his discretion, can still consider that factor. In other words, sentencers can get away with ignoring Jones, and probably will.

My, how far we've come. Several years ago, courts across the land anticipated the overruling of Baker v. Nelson. Now, judges are invited to adhere to readings of precedent that the Supreme Court formally rejected.

If we see this practice proliferate in other contexts, I suspect the Court will use the shadow docket to summarily reverse any dissidence. Still, those cases take years to bubble up. And the courts can't catch them all. Viva la resistance.

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

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  1. Wonder where liberals figured out this one….? It worked so well for Heller and its progeny why not just rinse and repeat…?

    1. The solution involves re-taking the Congress and impeachments.

      Wholesale impeachments on the District & Circuit levels.

      And Jimmy, they’re leftists not liberals…

      1. We are basically at revolution time, or darn well close to it…..

        1. Significant social change — not necessarily a revolution, but similar to Andrew Jackson or FDR when the country changed dramatically, seemingly overnight. Likewise as it did in 1974…

          I don’t believe that the Bite Her Arse administration is going to remain viable through 2025 — it may stumble through like Andrew Jackson did, but there are SO MANY cracks in the ice that things will change.

          We’re on the cusp of massive inflation and a stock market crash.
          Either of those *has* taken out the reigning political authorities before.

          1. Heh. Sorry, but the Trump era was the worst of times. Your silly “revolution” cosplay is a waste of time.

  2. The court didn’t choose overrule the decisions, so they are still good law.

    This is not some legalistic nullification.

    As usual, Blackman takes a massively overdramatic tendentious reading and goes to his fainting couch,

    1. Yes, even by Blackman standards this is a crazy amount of pearl clutching over something he would have agreed with before the last Supreme Court appointment.

    2. If the dissent actually said what Blackman claims it said, that WOULD be bad.

      But it didn’t say that.

      1. It sounds more like she’s emulating a sanctuary city that refuses to aid federal immigration laws with the safety qualifier “wherever it’s legal to do so.”

        1. Haha, no it doesn’t. You’re taking the Blackman reading, and it’s ridiculous.

  3. “Unless the Court is willing to bite the bullet and formally overrule the precedent, judges should still follow a rejected-reading of Montgomery and Miller.”

    That’s the price paid for the unwillingness to bite the bullet.

    Rulings that limit prior precedent “in the most narrow fashion possible” leaves all the room in the world for ever further hair splitting.

    To the extent that this causes any upset to the majority, it is entirely self-inflicted. They can end any possibility of crafted ambiguity by just hauling off and actuality doing it. Cart all of the precedent they’d like off to the landfill. Attempting to achieve the result of doing something without actually doing it is needlessly complex, and a little bit insane.

    And they won’t pay any price for just biting the bullet, unless they also want to claim that they are the champions of stare decisis. But they don’t even care about that, so why would they want to pretend that they do?

  4. Dc v Heller: Courts have been engaging in judicial resistance and “underrulling” Heller for over a decade. In fact, they have basically made the minority interest balancing test the de facto precedent.

    So, Prof if you are surprised, you have not been paying attention..

    I predict that Sotomayor will come out in favor of court packing. That’s the next shoe.

    1. I hope that fat piece of crap comes out in favor of having a heart attack.

      1. Well, she is Diabetic and is likely to be one of the next vacancies on the court.

        The filibuster still was in effect then, and the Senate should never have confirmed the “wise Latina.”

        1. I can’t wait. Maybe she can be buried next to RBG so patriots can piss on their graves at the same time. Nasty, despicable women.

          1. Prof. Volokh and the other Conspirators certainly have attracted a fascinating collection of fans.

        2. The filibuster still was in effect then, and the Senate should never have confirmed the “wise Latina.”

          Not to point out Ed The Stupid again, but the Democrats had enough votes for cloture even if the Republicans had unanimously tried to filibuster.

    2. Sotomayor favoring court packing would be a good thing — it would (a) isolate her from the rest of the court and (b) totally discredit it.

      When she was confirmed, I predicted that she’d implode — I’m just surprised it took so long.

  5. ” Here, I will focus on the most important jurisprudential aspect of the case: stare decisis. Going forward, Justice Kennedy’s 5-4 progressive decisions should no longer be treated as precedential. ”

    Would one of the more seasoned Volokh Conspirators pull Prof. Blackman aside and explain that the culture war has been settled, and that the clingers have lost? It would save right-wing legal academia in general some embarrassment.

    Or . . . just carry on, clingers!

  6. I think this is an over-reading of what she is urging lower courts to do. She tells them that because Miller and Montgomery were not overruled, they should still be followed to the extent possible, quoting Montgomery’s requirement that sentencers “separate those juveniles who may be sentenced to life without parole from those who may not.” This is not the same thing as telling them they must make a finding of incorrigibility, and thus is not contrary to the majority’s holding in Jones.

    Nothing in Jones commands sentencers to ignore incorrigibility. If lower court judges conclude as a matter of prudence that evaluating incorrigibility is good practice in every case, they are free to so proceed without running afoul of Jones. So even if Sotomayor was slyly urging lower courts to keep evaluating incorrigibility, that is not the same thing as urging them to defy the holding in Jones.

    If the majority wants lower courts ignore disfavored precedents, it should be explicit about overruling them. If not, I don’t think the dissenters should be faulted for pointing out that the disfavored precedents are still good law and should be followed to whatever extent possible.

  7. This is how the courts work. We are taught a simplistic model where the supreme court is at the top of pyramid and the lower courts merely follow. In practice, scotus takes 80 cases a year in full, maybe 200 a year if we include summary dispositions, and cannot keep up with rebellions below. In 1960, scotus rules states cannot require “paid for by _” disclaimers on political fliers, in talley v california. yet many states refuse to follow this rule, and sometimes lower courts go along. Kentucky, for example, has never followed Talley. Florida jailed Doug Guetzloe for forgetting a disclaimer, and the 11th circuit allowed this to continue. Similar at the 7th circuit, CT state courts, etc. I am currently seeking delaware cocounsel for a case on point. arbitrary aardvark, gtbear at gmail.com

  8. I think Blackman’s concern is overwrought:
    “Let’s say a sentencer declines to sentence a juvenile defendant to LWOP because the defendant is not incorrigible. That decision can be baked into the broader element of “discretion.” Could an appeals court reverse a sentence, because the Supreme Court held that incorrigibility was not required? Of course not.”

    If a judge has the discretion to sentence an offender to a lessor sentence that LWOP, and he is inclined to do so he will, he doesn’t need Sotomayor’s nod and a wink to do so. If he is inclined by the facts to sentence the offender to LWOP, then I don’t think Sotomayor’s dissent will sway him either. After all Sotomayor in her own dissent tells us how dissents should be regarded in future rulings: “Justice Scalia’s view did not prevail, however.”

    But I certainly commend Sotomayor for stating the real issue in her conclusion:
    “The question is whether the State, at some point, must consider whether a juvenile offender has demonstrated maturity and rehabilitation sufficient to merit a chance at life
    beyond the prison in which he has grown up. See Graham,
    560 U. S., at 79. For most, the answer is yes.”

    And if Jones really has rehabilitated himself and is truly a different man that the teenager who stabbed his grandfather over a sleepover I would hope the governor would commute his sentence, and give him a chance of life beyond prison. However its not up to the Supreme Court to substitute its judgement in place of the legislature, the judges and juries, and the governor of Mississippi where the procedures clearly comport with the constitution.

  9. “Viva” is Spanish, and “resistance” is French, so the proper phrase would be either “Vive la resistance” or “Viva la resistencia.” Unless this is some parody of the polyglot-speak used by preppie 20-somethings to show off their erudition,

    1. Except that both are sexist because of the “la” word.
      Not sure if it is a pronoun or not, but it definitely is sexist…

    2. The French phrase also has an accent: Vive la résistance.

  10. Here, Justice Sotomayor has opened an entirely new front in the battle over stare decisis: if the Roberts Court is unwilling to formally overrule a precedent, then lower courts should still follow those decisions “faithfully.” Truly, this proposition is remarkable. Justice Sotomayor is inviting trial courts to engage in a judicial resistance of Jones.

    Is she? I think she’s saying that just because the Court ruled that the Constitution does not mandate an inquiry incorrigibility does not mean that a sentencing judge is forbidden from conducting that inquiry.

    Is this a “everything that is not compulsory is forbidden” view of sentencing? Because that would be truly bizarre.

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