If SCOTUS won’t overturn even recent bad decisions, why does anyone think Roe is in danger?

· October 18, 2019  
    Font Size A A A
Supreme Court columns
dkfielding | Getty Images

It should be a no-brainer that any reputed conservative Supreme Court would easily overturn recent bad decisions limiting sentences of life without parole for juvenile murderers, like the infamous D.C. sniper, Lee Boyd Malvo, who, along with his older partner, killed 17 and injured 10 in 2002 in the D.C. area. Yet here we are, completely unsure whether we have to five justices willing to affirm the long-standing precedent.

Many conservatives somehow think we are building an originalist majority to overturn terrible court decisions from 50 years ago, such as Roe v. Wade, yet no legal analyst seems to think we even have the votes to overturn terrible decisions made by Anthony Kennedy this past decade. Then what good are these much-vaunted Supreme Court nominees?

Before delving into the Malvo case, some background is in order. 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. Liberals never have problems reversing precedents they don’t like when they discover new “rights.”

Well, what’s the alternative to the death penalty for people like Malvo who commit mass murder at the age of 17? Life in prison without parole, right? 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 unconstitutional. Finally, in Montgomery v. Louisiana, 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.

Freeze-frame right here. Given that it was Anthony Kennedy who insidiously took a hatchet to long-standing state powers over juvenile justice from 2005 to 2016, and he has now been replaced with the much-vaunted Brett Kavanaugh, shouldn’t we have the confidence that everything from Roper through Montgomery should be reversed? If we are promised by the Republican legal establishment that the new Supreme Court will overturn long-standing bad precedent, it certainly should easily overturn this craziness from just a few years ago.

Remember, we are not debating the policy or political merits of capital punishment or life without parole for juvenile murderers. We are debating the notion that the Constitution prohibits states from passing these laws. No originalist can ever contemplate such a novel idea, and with all the hype surrounding Gorsuch and Kavanaugh, this should be easy to overturn. Anyone calling himself an originalist should agree with what Thomas wrote in Graham v. Florida – that “the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment—specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights” (emphasis added).



Sadly, none of the legal analysts believe this will happen, and as is the case with so many issues, there is no confidence that anyone besides Thomas and Alito would categorically overturn these four cases.

The issue at hand in Mathena v. Malvo is whether to expand Montgomery to a case where the juvenile murderer wasn’t even sentenced to life without parole under a mandatory guideline. Lawyers for Malvo argue that the jury never really contemplated anything lower than life without parole, so while such a punishment wasn’t mandated, the jury never fully vetted out whether this specific juvenile was “incorrigible,” as required under the Miller decision. The Fourth Circuit agreed with Malvo.

Most of the oral argument time on Wednesday was dedicated to splitting hairs over whether Malvo fits into Miller and Montgomery. And even on that account, some legal bloggers like SCOTUSblog’s Amy Howe hypothesized that “Justice Brett Kavanaugh [is] potentially the pivotal vote.” Howe believes it’s “possible that a majority might try to navigate a middle ground that sends the case back for the lower courts to take a closer look at whether Malvo had a real opportunity to have the judge and jury consider whether his youth might warrant a lighter sentence.”

Time will tell, but notice how it’s not even under discussion that there might be five votes to completely overturn Montgomery and Miller, much less the previous cases. Nobody in the legal world believes anyone other than Thomas and Alito would categorically apply the Eighth Amendment as understood at the time of its adoption. That is because Gorsuch, although decent on many issues, is no Scalia, and Kavanaugh certainly is not. Roberts is getting worse by the day. And while many of these justices will not add to the existing bad case law, their political motivations will make them reluctant to overturn even the most egregious 5-4 decisions of the past decade or two.

Do you think Democrats have any doubt that the current four liberals plus their next potential fifth vote would overturn the Heller decision on gun rights from 2008 in a heartbeat? Heck, in the gay marriage case of 2016, they overturned a 9-0 decision from 1971. The courts have always been a one-way ratchet for the Left and a dead end for conservatives. The Left will toss out 200 years of precedent, history, tradition, and statute overnight on immigration or social issues, while judges like Roberts and Kavanaugh will dogmatically legitimize that breach itself as new precedent that must be accorded the highest degree of respect.

For decades, rather than militating against the premise of judicial supremacy over political questions, the GOP legal establishment has legitimized the concept, albeit with the promise that we would somehow win the supremacy game by “appointing better judges.” It was the ultimate scam for voting Republican rather than looking outside the GOP for a home for conservatism. Now, they believe they’ve finally achieved that goal. Yet nothing has changed. As always, when liberals have a clear majority, they make earth-shattering transformational changes. When Republicans get a majority, the lower courts still make radical decisions, and at best, the Supreme Court merely maintains the status quo. And in some instances, there is at least one GOP appointee peeled off to join with the transformational changes, as we witnessed multiple times last term.

Just remember, in the current legal system, for every Clarence Thomas, there are numerous John Robertses and Brett Kavanaughs – and an endless supply of Ruth Bader Ginsburgs. The capacity and resolve of a good judge to do good is nowhere near the capacity and resolve of a bad judge to do bad.


Find out what the mainstream media won’t tell you about President Trump and his administration.

Sign up to get BlazeTV host Jon Miller’s free White House Brief delivered right to your inbox once a day.

* indicates required


Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.