Greetings, Court Fans!

Yesterday was a big day at the Court, so we’ll get right to it. In Roper v. Simmons (03-633), the Court held that the Eighth Amendment’s prohibition on cruel and unusual punishments forbids the imposition of the death penalty on offenders who were under 18 at the time of their crimes. By way of background, in 1988 a plurality of the Court concluded that the Eight Amendment barred the execution of those under 16, see Thompson v. Oklahoma, 487 U.S. 815 (1988), but the very next year a 5-4 majority held that the Constitution allowed the execution of offenders who were 16 or 17 at the time of their crimes, see Stanford v. Kentucky, 492 U.S. 361 (1989). Today in Simmons, an equally slim 5-4 majority went the other way, based on (1) its finding that a national consensus against juvenile executions has arisen in the last 16 years, and (2) its own determination that juvenile executions are unacceptable.

Here’s the slightly longer version of the story. Simmons was 17 when he committed a capital murder, for which he received a death sentence in Missouri state court. Shortly thereafter, the Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that the Eighth Amendment prohibited the execution of retarded persons due to the emergence of a national consensus against such executions and to the fact that death was a disproportionate sentence given the limitations on the culpability of the retarded. Atkins overturned another Court decision, Penry v Lynaugh, 492 U.S. 302 (1989), that just so happened to come down on the same day as Stanford. Simmons challenged his sentence on the ground that Atkins‘ reasoning applied equally to juveniles. Disregarding Stanford, the Missouri Supreme Court agreed and reduced his sentence to life without parole.

The Court affirmed, in an opinion by Justice Kennedy. The Court began with the now-familiar quote that it reviews punishments by referring to “the evolving standards of decency that mark the progress of a maturing society.” The Court found objective indicia of a national consensus against the juvenile death penalty, as reflected by its rejection in a majority of states (30, including 12 that reject the death penalty outright and 18 that exempt juveniles) and the infrequency of its use where it remains on the books. Although states have been slower to reject the juvenile death penalty than they were to reject the execution of the retarded, the trend is toward abolition – and the slower pace is likely due to the fact that states began rejecting the juvenile death penalty many years earlier. The Court also noted that Atkins returned to the “rule,” abandoned in Stanford, that in addition to discerning a national consensus the Court should exercise its own judgment on the acceptability of the death penalty. In that regard, the Court concluded that capital punishment is for offenders who commit “a narrow category of the most extreme crimes” and whose extreme culpability makes them “the most deserving of execution.” Juveniles’ immaturity, vulnerability to outside influences, and the “more transitory, less fixed” nature of their personalities means that they are not as culpable as adults. Although the Court usually insists on individualized sentencing, here there is an unacceptable risk that the brutality of a particular crime might overpower mitigating arguments based on youth, so a bright-line bar is needed. Finally, while the “overwhelming weight of international opinion” is not controlling, it confirms the Court’s determination that death is a disproportionate punishment for juveniles.

Justice Stevens (joined by Ginsburg) filed a one-page concurrence, in which he applauded the Court’s recognition that our understanding of the Eighth Amendment, and the Constitution, has changed over time – or else we would still allow the execution of 7-year-olds.

It will come as no great shock that Justice Scalia authored a strong dissent, joined by Justice Thomas and the Chief. Scalia noted that the majority had held, not that Stanford was wrong, but that the meaning of the Constitution had somehow changed in the last 15 years. He disagreed with the philosophical underpinnings of the “evolving standards of decency” reasoning (though he acknowledged it as precedent), and he also regarded the evidence of the new “national consensus” as flimsy. Of the states that allow capital punishment, more than half allow the execution of juveniles, and only four have exempted juveniles since Stanford. Scalia would not count the views of those states that bar capital punishment altogether as evidence of a consensus on an exemption for juveniles: That’s like asking the Amish if they like the new electric cars – of course they don’t, but that says nothing about evolving standards. Scalia harshly criticized the majority’s decision to disregard the enactments of democratically elected legislatures and appoint itself, with guidance from foreign sources of law, as “the sole arbiter of our Nation’s moral standards.” If the Court has adopted an “evolving standards of decency” rule, it must discern those standards from actual U.S. practice, not use its own judgment to prescribe them from on high. Finally, Scalia was upset with the Missouri Supreme Court for disregarding Stanford, as only the Court can overrule itself – but then, having made the Eighth Amendment a mirror of changing sentiments, into which any court can gaze, that is partly the Court’s fault.

Justice O’Connor also dissented. She agreed with the majority’s framework – discerning a national consensus coupled with the Court’s own judgment – but she disagreed with its findings. In Atkins, there was strong evidence of opposition to the execution of the retarded and no countervailing evidence of support. Here, there was at least some evidence of public support for juvenile executions, and the trend was not one of consistent opposition but of “halting” change. In any event, O’Connor believed the real issue was not the national consensus but the Court’s judgment on the proportionality of the death penalty to a class of offenders. As to juveniles, that argument “is so flawed that it can be given little, if any, analytical weight.” While juveniles as a class are less mature than adults, state legislatures are surely right that some juveniles are sufficiently mature to deserve the death penalty, and there is no support for a bright-line rule that will protect some offenders who are mature but leave vulnerable others who are not. Finally, like Scalia, O’Connor was upset with Missouri for ignoring Stanford – apart from the constitutional issue, ignoring Court precedent was clear error.

With Simmons getting all the headlines, yesterday’s other opinion, Cherokee Nation of Oklahoma v. Leavitt (02-1472), got relatively short shrift. In that case, two tribes sought to recover “contract support costs” that the government promised to pay when the tribes took over various services that the government would ordinarily provide. Oral argument could not have been much fun for the government. The government conceded that it promised to pay the costs, but it argued that it was not bound by its promises because Congress failed to appropriate sufficient funds to cover the costs – even though it also conceded that “insufficient appropriations” is generally no excuse for ordinary government contracts (such as procurement contracts). In an opinion by Justice Breyer, a unanimous Court found for the tribes. The Court rejected the government’s argument that the tribes’ contracts were “special” because the tribes stepped into the shoes of a federal agency, and agencies (unlike contractors) generally have no entitlement to funds from Congress. The statutes authorizing the contracts make clear that they function as binding promises (just like procurement contracts). The Court also rejected the government’s reliance on various statutory provisions suggesting possible wiggle room when funds are unavailable, on the ground (once again, using the government’s example) that these provisions are similar to those governing procurement contracts, yet contractors are still entitled to payment. Justice Scalia did not join one aspect of the Court’s opinion that relied on legislative history (in this case, the report of a Senate Committee).

That’s all for now, although we expect one more opinion this morning. Until next time, thanks for reading!

Ken & Kim

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400