Going into today’s oral arguments in Montgomery v. Louisiana, many Court watchers would have said that there were two main things to look for. First, did the Court seem likely to rule that its 2012 decision in Miller v. Alabama – prohibiting mandatory sentences of life in prison, without the possibility of parole, for juveniles convicted of murder – apply to inmates whose appeals had ended before the Miller decision. Second, even though this isn’t a capital case, did the oral arguments tell us anything more about the internal divisions among the Justices when it comes to crime and punishment?
Unfortunately, the answers to those two questions were “it’s anyone’s guess” and “no,” as the Court spent the overwhelming majority of the seventy-five-minute oral argument focused on the threshold, and highly technical, question whether the Court had the authority to consider Henry Montgomery’s case at all. Let’s talk (briefly) about today’s argument in Plain English.
The Supreme Court only has the power to review what are known as “federal” questions – interpreting the U.S. Constitution or federal laws, for example. It does not have the power, for example, to review a state court’s rulings on state law. That matters in this case because Montgomery is asking the U.S. Supreme Court to review the Louisiana Supreme Court’s ruling that he cannot benefit from the Miller decision to get a new sentencing hearing, which could result in a shorter sentence for him. Here’s the heart of the problem: although it was not required to do so, the Louisiana Supreme Court relied on the U.S. Supreme Court’s cases governing when a decision applies retroactively to reach its conclusion. Does that mean that the Louisiana Supreme Court decision was based on state law (in which case the U.S. Supreme Court cannot review it) or instead on federal law (in which case it could)?
In the proceedings before the U.S. Supreme Court, Montgomery, Louisiana, and the United States (which supported Montgomery) all agreed that the Court has the power – known as “jurisdiction” – to review Montgomery’s appeal. But that isn’t enough for the case to go on: the Supreme Court Justices themselves must be satisfied that the Court has jurisdiction. So earlier this year the Justices asked Richard Bernstein, a Washington attorney and former clerk to Justice Antonin Scalia, to serve as a “friend of the Court” and make the argument that no one else was making – that the Court does not have jurisdiction.
Serving as a “friend of the Court” is normally a thankless task: no matter how good you are (and Bernstein was very good), you usually wind up losing, often in a decision that isn’t even close. Today’s oral argument could well be the exception to that general rule, as the Justices appeared skeptical about whether they could reach the main issue in the case – whether Miller applies retroactively to cases like Montgomery’s – at all. If they don’t, Bernstein emphasized, there is another case already pending at the Court that would allow them to decide the retroactivity issue without getting caught up in the sticky jurisdictional problems.
It was hard to read the tea leaves in the few minutes devoted to the retroactivity question. For the most part, the argument centered around two very different characterizations of what the Court’s decision in Miller actually did. Deputy Solicitor General Michael Dreeben (who argued on behalf of the United States) and Justice Elena Kagan (the author of Miller and the state’s primary antagonist) portrayed the changes wrought by Miller as substantive ones that should be applied retroactively. Dreeben emphasized that, by prohibiting mandatory sentences of life without parole, the Miller decision compels the state to adopt a new system, involving different outcomes, to sentence juveniles convicted of murder. Kagan echoed that point, underscoring that the Court’s 2012 decision took a category of punishment – mandatory life without parole – off the table. For his part, Duncan resisted that characterization, instead portraying the Miller rule as merely “an incremental step in sentencing juveniles” that still allows the state to impose life-without-parole sentences. It’s hard to say which view will win out, but given the Court’s strong focus on the jurisdictional puzzle, we may have to wait for a later case to learn the answer.