Some Thoughts on Graham and Sullivan
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.)