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 Court’s can’t catch them all. Viva la resistance.
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