Sore Losers

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[div style="display:inline; background-color:#FFFF66;"][font size="5"]Samuel Alito and Clarence Thomas are still trying to keep juvenile offenders behind bars for life.[/font]

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The Supreme Court is an egalitarian place in at least one sense: At some point, everybody loses. Most terms in recent decades, the liberals lose disproportionately. Some terms, the conservatives take a loss. Even Justice Anthony Kennedy loses every once in a while, and until recently he was basically a king. [div style="display:inline; background-color:#FFFF66;"]Most justices accept their loss, pen biting dissents, and get back on the horse to wage future battles—but this term, something very odd is happening. Justices Samuel Alito and Clarence Thomas lost a major constitutional case back in January. And now, four months later, it is alarmingly clear that neither man accepts the reality of his defeat.

Alito and Thomas’ diagnosable denial came to a head on Monday, when the court took care of the routine business of applying a recent decision to cases still on the docket. Here on planet Earth, that decision, Montgomery v. Louisiana, is settled law. Montgomery held that a 2012 decision barring mandatory life without parole for juvenile offenders applies retroactively, creating a new “substantive right” for convicts who were once juveniles sentenced to life. Under Montgomery, prisoners sentenced to life as juveniles have a right to present evidence that they have shed their youthful criminality and deserve to be released. Only the “rarest of juvenile offenders” may be imprisoned for life, the court found; all must be given an opportunity to demonstrate rehabilitation, and “all but the rarest,” most depraved offenders must eventually be set free.

[div style="display:inline; background-color:#FFFF66;"]Predictably, Alito and Thomas dissented from both Montgomery and its predecessor, Miller v. Alabama. The trouble began when the former was decided earlier this year: In his dissent, Thomas actually encouraged state courts to refuse to hear Montgomery appeals. This was bizarre, but at least it came during the course of the routine business of dissenting from a major opinion. But shortly after Montgomery, things got way weirder. The Supreme Court reversed nearly two-dozen lower court decisions prohibiting juvenile defenders from appealing their life sentence, as the new precedent would demand; but Alito and Thomas kept pinning a curt caveat to each new order, urging courts to consider other grounds on which they could reject the appeal and keep the prisoners sentenced as juveniles locked up for life.

[div style="display:inline; background-color:#FFFF66;"]On Monday, Alito and Thomas went a step further, attempting to perform an act of prestidigitation that would effectively make Montgomery disappear altogether. In an opinion joined only by Thomas, Alito noted that several juvenile offenders appealing their life sentences had originally been sentenced to ​death​—back before the Supreme Court outlawed capital punishment for minors. (When the court finally found that executing juvenile offenders violated the Constitution, these offenders’ death sentences were converted to life sentences without the possibility of parole.) In that era, special rules applied to a minor in a capital case: A jury was required to consider “all relevant mitigating evidence,” including the offender’s age. That means these offenders already had one opportunity to explain why their age reduces their guilt. Because juries might have “considered but rejected youth as a mitigating factor,” Alito writes, courts should feel free to refuse these juvenile offenders a chance to appeal their life sentences under Montgomery. Taken seriously, his opinion Monday provides conservative judges with a road map to wriggle out from under Montgomery’s central command, illegally depriving juvenile offenders of their constitutional right.


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