Josh Blackman wants conservative judges to stop apologizing for “socially conservative decisions,” but what if, I hear, they stop making social / political decisions fully and instead just stick to legal decisions?
Last Thursday, the Supreme Court ruled Jones v Mississippi. The question before the Jones Court was: “[w]Whether the eighth amendment requires the criminal justice agency to determine that a juvenile is permanently incorrigible before imposing a life sentence without parole. “If you are familiar with the recent Court of Justice precedent in this area, you will be forgiven for expecting the Court to answer this question in the affirmative. After all, the Court of Justice ruled in 2005 that the eighth amendment prohibits the imposition of the death penalty on juveniles. In 2010 the court ruled that juveniles cannot be given life without parole for crimes other than murder. More importantly, in relation to the Jones case in 2012 and 2016, the Court ruled that juveniles cannot be given life without parole except “for all but the rarest juvenile offenders whose crimes reflect a permanent incorrigibility”. Although there was a clear precedent here, you see that this was then, only five years ago, and this is a new court with a new majority of social conservatives.
In Jones, a majority in the Court stated that neither the Eighth Amendment nor previous cases require judges “to make a separate determination of the fact of permanent incorrigibility” when sentencing a juvenile offender to life without parole. Never mind that, as quoted above, this was exactly what the previous case law required. The thing about ideological domination is that you don’t have to worry about what was said before and you don’t have to worry about trivial little things like rigid decisions. Here a conservative policy must be made, and the case law that says the opposite cannot stand in the way!
For the most part, the reaction to the Jones decision was unsurprising. In one play in Slate, Mark Joseph Stern described it as “one of the most dishonest and most cynical decisions in recent memory.” Stern’s description seems difficult to argue. In fact, I haven’t seen anyone try. In his approval of Jones, Justice Clarence Thomas was perhaps less harsh-tempered than Stern, but ultimately came to a similar conclusion that the court was overriding precedents while insincere claiming to follow him by using what Thomas was Called “tense reading”.
It seems easy to say that such dishonesty by our nation’s supreme court should be objectionable to all. But not Josh Blackman, who, among other things, regularly (and often brilliantly in my opinion) contributes to the Volokh conspiracy at Reason. For Blackman, the uncomfortable part of the majority opinion in Jones was that the Conservative judges appeared * panting * to apologize for a socially conservative decision. I’ll have Blackman explain:
The very last paragraph of the Kavanaugh Justice majority opinion suggests that other branches of the Mississippi government should assist the defendant Brett Jones:
After all, our inventory today is by no means the last word on whether Jones will be released from his sentence. Jones claims he had a good record in prison and that he is a different person now than he was when he killed his grandfather. He articulates several moral and political arguments for why he shouldn’t be forced to spend the rest of his life in prison. Our decision enables Jones to take these arguments to state officials with the power to respond, such as the legislature, state courts, or the governor. These state avenues for condemning relief remain open to Jones and will continue to be open to him for years to come.
Why? Why is this section necessary? The Supreme Court should concentrate on its own affairs and let the other branches of state government do their work. Stay on your track.
Notably, Blackman nowhere objects to the dishonesty of the Court of Justice when he pretends to be following a precedent when in fact overriding previous case law. Indeed, in another article, Blackman stated that he was “not interested in debating” whether the majority had correctly applied the previous jurisprudence. It is a bit ironic, to say the least, when a legal commentator tells a court to “stay on your trail” because it apologizes to those affected by a decision while refusing to answer the legal issue discuss whether the opinion misrepresents previous case law. But Blackman’s objection is more revealing.
When I describe a legal decision as a “socially conservative decision”, I am giving away the game that the court is playing. In particular, that this “court of justice” is primarily politically motivated. Where the law is regularly replaced in favor of the judges’ preferred socio-political desires. Of course, I know the Supreme Court has always done this to some extent, but this new “Court” is going off the rails.
To maintain legitimacy, each court needs to know in advance what it is doing. I can’t believe I’m saying this, but Justice Thomas is right. The only acceptable approach for the Jones Supreme Court was to “be blatantly clear” that the majority of the previous case law disagreed. Instead, the court chose to lie, even though the lie was visible to all. One possible reason the Conservative majority may have been nervous about taking an honest position on Jones is the recent performative handshake by Conservative judges about how to strictly apply the law rather than just doing what they want.
Don’t expect Blackman to object as long as dishonesty leads to socially conservative political desires. Unless, of course, the judges apologize to those who are negatively influenced because that is not their lead, you see?
Tyler Broker’s work has been published in the Gonzaga Law Review, Albany Law Review, and University of Memphis Law Review. Feel free email him or follow him further Twitter to discuss his column.