Some Thoughts on Graham and Sullivan
posted by Alex Kreit
I’ve been in Washington, DC for the past few days to attend the oral arguments in Graham and Sullivan, the juvenile life-without-parole cases. Though I’m not normally in the habit of flying across the country to see oral arguments, I’m team-teaching a small seminar about the two cases and we decided to organize a class trip for the occasion. There were a few snags, but all in all it was a lot of fun. (It also brought back some wonderful memories for me of my very first trip to see oral arguments at the Supreme Court as part of a seminar I took in college.)
I ended up listening to the arguments from inside the “lawyer’s lounge” for overflow Supreme Court bar members (one of the aforementioned snags was our miscalculation of exactly how tough it would be to get in to hear the arguments.) I don’t have too much new to add to all of the excellent (and much more timely) commentary on cases. Like many others, I thought that the most interesting development was Chief Justice Roberts’ focus on incorporating age into Eighth Amendment proportionality review. The idea is not one any of the parties discussed in their briefs. The attorneys for Graham and Sullivan advanced the view that life without parole for juveniles for a non-homicide offense is cruel and unusual. Meanwhile, the State of Florida took the position that the standard proportionality test should apply and that the sentences in each case easily met that standard. Splitting the difference by incorporating age into proportionality review seems to be an appealing way to reconcile the Courts’ jurisprudence regarding juveniles and the death penalty with its proportionality jurisprudence. And, at least on the surface, the idea seems like it might provide an avenue for a majority of the Court to come together around a single standard. I do wonder, however, how an approach along the lines of what Justice Roberts’ seemed to be proposing might actually play out in these cases.
Assuming, for the sake of argument wild speculation, that Roberts can get a plurality together to adopt his idea (let’s say, himself, Kennedy and Sotomayor), there is certainly no guarantee that they would be able to agree about the details–namely, the weight an offender’s age should be given in the test. Conceivably, we could see a highly fractured Court with a number of Justices coming together around the basic premise of incorporating juvenile status into proportionality review but then diverging significantly (and in very different ways) after that. I’ll admit that I have not yet had the opportunity to read all of the great commentary on the case and so I imagine someone has already speculated (very likely much more insightfully than I have) about how a Roberts-test might result in a number of different opinions that each follow his basic idea but agree on little else. However, having gone to DC for the argument while guest-blogging here, I could not resist writing up a quick a post to add my two cents about the case (especially since doing so has been a convenient way to productively avoid the mountain of email waiting for me in my inbox.)
November 11, 2009 at 6:07 am
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Responses (4)
Orin Kerr - November 11, 2009 at 10:21 am
“I ended up listening to the arguments from inside the “lawyer’s lounge” for overflow Supreme Court bar members (one of the aforementioned snags was our miscalculation of exactly how tough it would be to get in to hear the arguments.)”
Funny, I was trying to figure that out myself. The big variable was Bilski in the afternoon. Crim cases don’t draw an audience of bar members but patent cases do, and I wasn’t sure whether the patent folks would show up for the morning arguments to get a seat for Bilski and therefore crowd out the people who wanted to go for Graham and Sullivan. (I assume they keep the same seating for morning and afternoon arguments?) I ended up working late on edits so I didn’t try to go in the morning, but I was wondering about the same timing question.
John - November 11, 2009 at 11:44 am
I’m wary of what is going to come out the Court’s decision here . . . the proportionality cases have been a mess for going on thirty years, and a fractured decision along the lines you mention isn’t going do much to help, and might make things worse.
The way I see it, the Court refuses (rightly or wrongly) to take sides in the utilitarian v. retributive debate, and therefore finds itself in the impossible position of having to pass on the constitutionality of something that is clearly rational in a consequentialist sense (locking someone up for life for a serious crime), but likely not rational or reasonable from a retributive sense.
It also doesn’t help that the Court has no clear idea of what utilitarian or retributive goals they should even been addressing (once they address them) – deterrance only? Scalia trends that way. Rehabilitation? That question comes up in oral argument, but the court doesn’t take it very seriously. Expressive retributivism (ala Dan Markel’s paper from a few years back on limiting the death penalty)? Pure desert? I doubt the Court really even understands such distinctions, but their presence pervades the opinions in these types of cases.
The Court is clearly riffing on theories its members (and their clerks) haven’t thought through, and the results seem likely to suffer because of it.
Alex Kreit - November 12, 2009 at 2:45 am
They actually ended up having separate lines for the morning and afternoon sessions for bar members, so the size of the crowd was especially surprising. I’d estimate that the over-flow lawyers room was about 1/2 to 2/3 full for Graham and Sullivan. (And Bilski seemed like it was poised to draw an even larger crowd of bar members. The Bilski bar member line was already about 1/2 the size of the Graham/Sullivan line when they let the Graham/Sullivan line in at 9:45.)
I’m also a bit concerned about the prospect of a fractured Court. And, based on oral arguments, I’d be very surprised if we don’t see at least a 3-way split. (Not to mention the further complication of having two different cases.) Only time will tell though I suppose.
Friday Round-up | SCOTUSblog - November 13, 2009 at 8:06 am
[...] in Graham v. Florida and Sullivan v. Florida has continued through the end of the week. At Concurring Opinions, Alex Kreit comments on the arguments, highlighting in particular Chief Justice Roberts’s [...]
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