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Horowitz: This Supreme Court decision demonstrates why 'conservative' judges will never reverse bad precedent

Op-ed
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It's a perfect system for the leftists. Through judicial supremacism, their judges get to ignore 200 years of precedent, practice, and the plain meaning of natural law and the Constitution. But once they successfully breach that precedent in a single case, conservative judges will indulge the breach as the new baseline headed forward, and the only question is whether they decide to expand upon it as quickly as the leftists. Nowhere is this more evident than in last week's decision in Jones v. Mississippi, in which every justice but Clarence Thomas permanently enshrined the anti-constitutional premise that requiring juvenile murderers to serve life without parole violates the Eighth Amendment.

Some of you might have seen headlines indicating that conservatives won in the Supreme Court last week, when the court upheld the conviction of Brett Jones, who murdered his grandfather when he was 15 years old. While the state supreme court's judgement against Jones was indeed upheld by all six GOP appointees on the high court, Clarence Thomas observed in his concurrence that the other justices seem to have accepted the basic premise and even political rhetoric of the left on juvenile justice and have no plans to overturn any of the recent bad decisions.

Some background is in order before delving into this case and Thomas' concerns.

In 2005, contrary to practice in our country since the Founding, the Supreme Court ruled that capital punishment for juveniles violates the Eighth Amendment's prohibition on cruel and unusual punishment in all cases. Writing for the majority in Roper v. Simmons, Anthony Kennedy applied foreign law to overturn a 1989 Supreme Court decision (Stanford v. Kentucky) and rule that a punishment in practice at the time of our Founding somehow violated our own Constitution. He felt that "the evolving standards of decency" gave him the right to unilaterally amend the Constitution.

Whether one agrees with capital punishment at all or for juveniles in particular, there is no way anyone can suggest with a straight face that it is barred by the Constitution. If you don't like the practice, then you can fight it in the state legislatures. Any conservative justice worth a penny as an originalist would have to overturn Roper at the first opportunity. Yet Roper was just the beginning of this one-directional ratchet towards sanitizing heinous crimes committed by juveniles and absurdly enshrining it in the Constitution.

What's the alternative to the death penalty for juvenile violent criminals? Life in prison without parole, right? Well, in Graham v. Florida (2010), Kennedy, joined by the liberals and Roberts, ruled that life in prison without parole for a juvenile is unconstitutional except for cases of murder. Then, in his incremental ad hoc constitutional amendment process, in Miller v. Alabama (2012), Kennedy took it to the next level and joined with the four liberals to rule that state laws mandating life in prison without parole even for murder are indeed unconstitutional. Finally, in Montgomery v. Louisiana (2016), the court retroactively applied the Miller v. Alabama decision to roughly 2,500 people already serving mandatory sentences of life without parole as juvenile murderers. Roberts bizarrely joined in with Montgomery, even though he wrote the dissent in Miller, because once a post-constitutional decision is made, he will indulge and even expand it.

Which brings us back to the Jones case. While Miller barred states from categorically mandating life without parole for juvenile murderers, it still allowed judges to issue such sentences, so long as they offer defendants individualized hearings to weigh the merits of life without parole for that particular juvenile as opposed to simply mandating it across the board. On paper, Montgomery simply applied this ruling in Miller retroactively to those currently sentenced under mandatory life without parole laws. But Jones and the liberal justices argued that the rationale undergirding Montgomery, in which they made the individualized determination part of a "substantive" right, would necessarily require that the judge actually issue a finding that this particular defendant is part of what the court now believes is a small minority of those "whose crimes reflect permanent incorrigibility."

In other words, according to Jones, although the state judge did follow the letter of Montgomery and re-sentenced him using an individualized hearing, the sentencing is not valid because now he must show his work and demonstrate in a finding that Jones is incorrigible. The court ruled 6-3 that the Montgomery decision does not compel such a finding, and in the majority opinion, written by Justice Kavanagh, the court struggles to explain away some of the language in Montgomery.

In comes Thomas in his concurrence and blasts his colleagues for indulging Montgomery in the first place. Wouldn't this have been the perfect opportunity to overturn Montgomery, if not the entire rationale — a misreading of the Eighth Amendment — behind the line of cases leading up to it?

"The Court correctly holds that the Eighth Amendment does not require a finding that a minor be permanently incorrigible as a prerequisite to a sentence of life without parole," Thomas wrote. "But in reaching that result, the majority adopts a strained reading of Montgomery v. Louisiana, 577 U. S. 190 (2016), instead of outright admitting that it is irreconcilable with Miller v. Alabama, 567 U. S. 460 (2012)—and the Constitution. The better approach is to be patently clear that Montgomery was a 'demonstrably erroneous' decision worthy of outright rejection."

What's worse is that Kavanaugh's majority opinion concludes by emphatically stating that the court is following precedent and almost apologizing for the concept of life without parole and hoping for other ways for Jones to get out of the sentence.

"As this case again demonstrates, any homicide, and particularly a homicide committed by an individual under 18, is a horrific tragedy for all involved and for all affected," Kavanagh wrote, echoing the sentiment of the left that juvenile murderers are also victims.

He goes on: "Determining the proper sentence in such a case raises profound questions of morality and social policy. The States, not the federal courts, make those broad moral and policy judgments in the first instance when enacting their sentencing laws."

But that's not true! The federal courts have already barred states from categorically mandating life without parole, much less the death penalty, and from issuing life without parole to juvenile serial rapists. Kavanaugh and his colleagues don't seem to be troubled by that degree of federal encroachment upon long-standing state criminal justice decisions. They have no plans to overturn those insane decisions. The majority opinion basically praises Miller and Montgomery and brags that they have "indeed helped make life-without-parole sentences for offenders under 18 'relatively rare.'"

In a gem of a footnote, Thomas blasts Kavanaugh's majority opinion for using the left's language on juvenile murderers, which is the opposite of the language the court uses for juveniles seeking abortions.

Thomas wrote, "The Court's language in this line of precedents is notable. When addressing juvenile murderers, this Court has stated that 'children are different' and that courts must consider 'a child's lesser culpability.' Montgomery, 577 U. S., at 207–208 (emphasis added). And yet, when assessing the Court-created right of an individual of the same age to seek an abortion, Members of this Court take pains to emphasize a 'young woman's' right to choose. …It is curious how the Court's view of the maturity of minors ebbs and flows depending on the issue."

Thomas' observations speaks to the broad philosophy of leftists toward minors in which they believe they are mature enough to do everything except be held accountable for murder.

It is very notable that not a single other justice signed onto Thomas' important concurrence. Ask yourself the following question: If the conservative justices are not even willing to roll back radically unconstitutional expansions of unconstitutional decisions as recent as 2016, and the best we can hope for is that sometimes they will decline to expand upon it further for now, do you really think we have the votes to overturn even the expansions of Roe (such as Hellerstadt with the Gosnell laws), much less Roe itself and Casey? Do you really think the non-Thomas justices will have the moxie to overturn any bad precedent couched in race, sensitivity, morality, and caring, which is essentially how every important decision is framed?

Indeed, the Republican Party has convinced conservatives to continue voting for Republicans, despite the betrayals, all to save the courts. Now they are promising to fight the Democrats trying to pack the courts. But if we were truly honest, as this low-profile but important case demonstrates, we'd concede that the courts were lost a long time ago. It's the current orientation of the court that's the problem. We have met the enemy, and he is us.
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