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Ramble: Are 13 Judges Better Than 9?

President Joe Biden just wants to study the Supreme Court and possible reforms. U.S. House Judiciary Chair Jerry Nadler of New York and U.S. Senator Ed Markey of Massachusetts want to move straight to reform and expand the Court to Lucky 13:

Congressional democrats plan to unveil legislation expanding the size of the Supreme Court on Thursday, according to three congressional sources familiar with the closely held measure.

The bill would add four seats to the high court, bringing the total to 13 from the current nine….

The number of justices on the court, which is set by Congress, has fluctuated throughout the course of the nation’s history, reaching as many as 10 seats before settling on nine in 1869. In 2016, Sen. Ted Cruz suggested that if Hillary Clinton were elected, the Republican Senate should keep Justice Antonin Scalia’s seat empty, effectively bringing the number of justices down to eight [Ryan Grim, “House and Senate Democrats Plan Bill to Add Four Justices to Supreme Court,” The Intercept, 2021.04.14].

Let’s set aside partisanship and triskadekaphobia and discuss this proposal from a traditional conservative policy viewpoint in which we assume that the status quo is acceptable until the proponents of change meet their burden of proof to demonstrate that  their proposal constitutes a net improvement over the status quo.

The primary question in debating this proposal should be, Can thirteen justices more effectively interpret the Constitution than nine? A simplistic extrapolation of the proverb two heads are better than one would say sure. So would my own democratic axiom that the more people we have voting on an issue, the better. But both of those general principles set no upper bound, and when it comes to the Supreme Court, there is definitely a finite number of heads qualified to vote on complicated matters of Constitutional interpretation. I’m o.k. with—correct that: I passionately advocate—enacting laws by direct democracy, but I’d like my deep legal analysis and Constitutional interpretations to come from a smaller pool of experienced jurists. If there is any place for philosopher kings in my democracy, it’s the Judicial Branch.

But where, then, is the sweet spot between one and everybody?

Multiple justices carry the obvious advantage of preventing one ideologue from imposing her arbitrary will on the nation for decades. The more justices on the bench, the less chance there is that any one President will have the chance to appoint an ideological majority… but the more chance that each President will get to appoint at least one or two justices to bring that President’s ideological leanings into the Court’s mix. Of course, without term limits (and while I oppose term limits for elected office because elections are term limits, I can entertain an argument for term limits for judges who face no public accountability other than impeachment), Presidents are not guaranteed equal opportunities to contribute to the diversity of the Court: Barack Obama served eight years and only got to seat two Justices; the guy after him served just four years and got to seat three Justices.

But again, if we can argue that more is better, what is the optimal more?

Maybe thirteen would work as a natural offshoot of the structure of the federal courts. We currently have thirteen appellate courts: twelve regional districts plus one with nationwide jurisdiction. Perhaps the Supreme Court should be reconfigured to require one justice from each of those appellate courts.

We could take that structural logic a step further and propose 94 Justices for the Supreme Court, one from each of the federal judicial districts… but I suspect that a Court of 94 judges would make traditional oral arguments with equal opportunity for each judge to grill the litigants impossible.

But the fact that thirteen might align with some existing judicial structure does not establish that thirteen Justices will produce better rulings than nine. Maybe we could default to questions of workload. The Supreme Court just reported that the pandemic reduced its workload by 38% in 2020 but anticipates that as the nation recovers, so will its caseload. If we add justices, the Court can spread the work of writing majority and minority opinions among more members, perhaps producing rulings with more efficiency, more detail, and more readability. Many hands might make for lighter work and swifter justice.

I propose the above lines of argument for increasing the size of the court, but I am not wedded to them. I invite your extensions, rebuttals, and entirely new lines of thinking on the topic. But let’s make clear our intentions: none of these arguments matter if the intent is a mere power play to pack the court with more of our own people. I’m not saying a power play is inherently wrong—if people are being denied their justice by an ideological minority committed to apartheid for a dwindling cadre of colonialist oppressors, then a power play to outnumber and outvote those apartheidists is entirely just. But the argument for a power play must be rooted in much deeper principles of justice than simply saying, “We want a court of Democrats!”

28 Comments

  1. John 2021-04-15

    The reality is that justices are politicians in a robe. There are no “philosopher kings” – Thomas? Alito? Kavanaugh? the late Scalia? the late Douglas?
    SCOTUS should reflect the people it serves. Most Americans tend toward moderate policies.
    For example, the US Senate is split 50:50 yet senate democrats represent 41.5 million more people than do the senate republicans.
    https://www.minnpost.com/eric-black-ink/2021/02/u-s-senate-representation-is-deeply-undemocratic-and-cannot-be-changed/
    SCOTUS representation and makeup should not be contaminated simply because the senate is the home of over-represented regressives and obstructionists.
    Andrew Yang has the better policy for SCOTUS to depoliticize the institution – 18-year term limits with 1 justice each appointed in year 1 & year 3 of each 4 year presidential term.
    https://2020.yang2020.com/policies/scotustermlimits/

  2. Wayne 2021-04-15

    Cory, what is the problem with nine justices that we need to fix?

    It’s not enough to say X is better and therefore we should do it.

    4k TVs are better than my older HD TV. But I’m not racing to buy the latest and greatest; my TV still works fine.

    My truck is not the newest and best, but I have tens of thousands of dollars in my bank account because I’m not perpetually buying new. It still runs and gets me from A to B just fine.

    If you really want to engage in true conservative policy consideration (which I agree with), you have to demonstrate not just that X would be an improvement over Y, but that Y is not adequately meeting our needs to the extent that it’s worth the added headache, time, and expense to change to X.

    I’ll broach the same questions I did to the last post.

    1) Why suddenly do we need to have this examination of the Supreme Court?

    2) Are you willing to staunchly advocate for having any changes to the makeup of the Supreme Court delay until after a presidential election? That way the citizenry can make an informed choice about who they’ll be voting for, knowing that a potential passel of justices will be added.

  3. Richard Schriever 2021-04-15

    The problem with Yang’s approach is that it limits presidential appointments as well as the terms of justices. let us say that a 9/11 style attack hits the SCOTUS while hearing an argument. So then we will have ONE justice for 2 years, 2 for 2 years, then 3……… Or even more mundanely, let us say that 3 current justices expire (die) or otherwise exit the court over a short period. Then what?

    Perhaps a hybrid of mandatory term limits PLUS a clause to allow for additional appointments in those cases – but then how to handle the length of terms of any additional appointee(s)?

    And of course, there is always the possibility that a Senate could impeach an entire court!!?? Then what?

    So some times the simplest approach is the best, and some times – not.

    Study of the idea is a good idea itself. Personally, I favor the notion of some connection of the number of justices to the number of Federal districts as a base-line. BUT, I am interested in learning about the number of cases heard, appealed and granted the right of appeal contemporaneously vs. that number in 1869 (for ex:)

    IMO, the SCOTUS is to be available as a method for the citizens to have their cases interpreted under the constitution as a SERVICE provided for under said constitution vs. the SCOTUS determining which cases it feels like or doesn’t feel like adjudicated. WE already have one branch of government that essentially does as it does or does not please without regard to the needs and wants of the citizenry in the Congress. The courts should not be another branch that places itself ABOVE service to the public due to disproportionate staffing to need.

    But them I also feel that Congress should be configured in the same proportion ti the size of the nation’s population as it was in 1789 – resulting in a house of representative comprised of some 5,000 + members. let’s see a lobbyist heard them cats. IMO a better solution to the bogus “term limit convention” for congress Trojan horse for nullifying constitutional order altogether.

  4. Richard Schriever 2021-04-15

    Wayne – “Why suddenly” is an ill fitting framing of the issue. The politicization of justices is a LONG standing issue. The changes in proportion of justices to the nation’s population and court cases/activity is a LONG standing issue. Although, I recognize that to the truly “conservative” mind any change is experienced as “a sudden (actually immediate – as in happening in the here and now) shock” to that general psyche’s preferences for static stability and predictability in all things.

  5. Richard Schriever 2021-04-15

    Wayne – again, waiting for the presidential election is nicely McConellian of you. In this case, the process works thus; The President PROPOSES and Congress disposes. It is Congress, and not the President who make the final determination as to the structure of the court. Congressional elections would have the only REAL impact on the implementation of any Presidential proposal.

  6. Richard Schriever 2021-04-15

    Wayne – finally – as to your initial question “What is the problem…..?” That is precisely why a study is needed. We don’t know that there is or is not a problem or what the problem(s) might be with the structure of the court that inhibits it from performing its duty to provide the SERVICE to the citizens (vs. primarily to Congress or the Executive) of interpreting how the constitution applies to modern life legal scenarios. The preferred order is that the polity is served above the politician(s). Or don’t you agree with that order of service and preference?

  7. bearcreekbat 2021-04-15

    In my view, appointing more Justices is merited to deal with the ever expanding requests for SCOTUS review of lower court decisions. I even find Cory’s idea about appointing “94 Justices for the Supreme Court, one from each of the federal judicial districts” to be quite feasible and much more democratic than the “philosopher king” fantasy. Here is the response I posted in the earlier thread to Wayne’s observations on the merits of that solution, which solves the “too many justices foi oral argument” worry:

    Wayne does make a valid point regarding the current argument that changes in population and SCOTUS caseload require more justices. For many people, this argument seems to stem from the percieved unfairness of the Senate in denying Obama’s efforts to appoint Judge Garland, while in the same breath approving Trump’s appointment of Judge Barrett. Obviously, that process stinks of political corruption and reasonably has motivated some efforts to appoint more justices to the SCOTUS in an effort to right this wrong.

    Even so, regardless of political motivation, the argument that increasing the number of justices would improve the functions of the SCOTUS seems a very reasonable argument, especially due to substantially increased caseloads and requests for review of appellate rulings. For example, the argument that more justices would make the SCOTUS more “inefficient” overlooks both current federal law and the experience of the 9th Circuit Court of Appeals, which has 29 active judges. In the most serious cases Circuit Courts of Appeal often hold “en banc” hearings, which are quite similar to SCOTUS oral arguments. In Circuits with fewer judges, such as the 8th Circuit Court of Appeals, all active judges sit on en banc hearings, which also imitates the SCOTUS with its current nine sitting justices. Some Appellate Courts covering many States or large geographical areas, however, have substantially more active judges than the SCOTUS, which theoretically could, as Wayne suggests, make their en banc hearings inefficient and difficult to manage. A current solution appears to have adequately resolved this potential problem.

    Federal law provides that for courts with more than 15 judges, an en banc hearing may consist of “such number of members of its en banc courts as may be prescribed by rule of the court of appeals.” The Ninth Circuit, with 29 judges, uses this procedure, and its en banc court consists of 11 judges.

    https://en.wikipedia.org/wiki/En_banc

    The SCOTUS certainly could apply such a rule to all cases it agrees to hear by prescribing a specific number of justices, such as nine, to sit on each appeal. This would take care of the inefficiency problem by giving the SCOTUS enough judges to take and decide more important cases than is possible today with only nine justices. And by rule, the justices assigned to each case could avoid the appearance of political bias by requiring four such justices to come from groups appointed by each political party, with the ninth justice selected by these eight justices.

    Even if the current argument regarding the size of the court is tainted somewhat by recent Republican political shenanigans, the merits of such an argument seems quite valid for practical, non-political reasons.

  8. mike from iowa 2021-04-15

    13 is better than 9 and using magat situational non-ethics I will prove it. Biden wants 13 justices. He can and should do it because he can. Just like magats refused to even give Garland a hearing because they could. Just like magats swore no one ever considered a justice in the final year of the president’s term. Just like they accelerated approving a right wing ideologue to the court just before drumpf lost his bid for re-appointment as potus. Just because they could.

  9. Norma Wilson 2021-04-15

    If twe were added, that would make an odd number 11, Why add 4 instead of 2? I think four may be too many for it to fly. There is a greater chance of increasing the number and it will take less time if just 2 are added.

  10. sdslim 2021-04-15

    I would say 9 is enough. I would also support 15 year term limits, and some sort of divisional representation, like divide the nation into 9 districts by population, and each district only gets one Justice. The President still appoints/nominates and the Senate still confirms. Just the term limits would be a good start!

  11. o 2021-04-15

    All this discussion ignores some context: Mitch McConnell barred President Obama from making a proper judicial appointment to the Supreme Court. The “nine-is-the-correct-number” hardline from the Right COMPLETELY ignores their culpability for making how many justices is the right number a point of debate. As to the politicizing/packing the court objection from the Right, it is again only hypocrisy that allows the party out of power to decry the potential manipulations of the Court — a court that was politically manipulated by the Right — by the party now in power.

  12. o 2021-04-15

    MFI, well put.

  13. Wayne 2021-04-15

    Richard,

    My question about suddenness I think is fair. I’ve known Cory a long time and it’s only recently that the topic of ~number~ of justices has been an issue. We’ve discussed term limits and the like in the past, I know. I am open to the possibility that my memory is faulty, so if someone can find an archive blog post about this topic, I’ll concede. My point, though, is that Cory is latching onto a national narrative that has an explicit agenda under the guise of something quasi reasonable sounding.

    If the size of the court in relation to the population has been a long standing issue, why only now has it been elevated to prominence? I don’t recall this being a topic brought up on the nightly news in the past couple decades. Guns & abortions have been hotly debated as long as I can remember. And nominations to SCOTUS have grown more contentious. But I can’t for the life of me remember news anchors hosting specialists and scholars to discuss the size of the supreme court prior to the past 18 months. Feel free to refresh my memory.

    To the question of timing. I’m actually advocating the avoidance of scheming and one-upsmanship that McConnell has practiced. By delaying the enactment of any change, it gives the polity the voice to set the course. Otherwise, I see a horrible course whereby the next time Republicans gain control of the Senate & White House, they again revise the number of judges to get back at Democrats. Rinse. Repeat until the institution becomes so embroiled that there’s no veneer of impartiality.

    Yes, Congress would have to enact the recommendations. But a change in composition means the President is going to be making game-changing appointments that he didn’t campaign for. Do you really think the populace shouldn’t have a say in such a monumental shift?

    To your question about the study and my support for the polity being served above politicians, let me play your game and say yes I agree that the people should be served first and foremost. It’s why I believe government overreach is such a problem and needs to be squashed.

    But I can hold that belief and still also hold a belief that the SCOTUS size and procedure serve that public. SCOTUS need not hear every appeal to allow the nation to be served. By declining to hear a case, they grant tacit approval to the lower court ruling. It’s only where jurisdictions are arriving at different conclusions, or have erred in jurisprudence, that SCOTUS needs to wade in.

    But back to the idea of a study. If SCOTUS composition has been discussed for a long time as you say, then what’s the purpose of the study? It seems off to say on one hand that this has been a long standing issue, but on the other hand that we have no idea whether there’s a problem with the Court or not that would be solved by size.

    Your concept of reverting back to original size of representation intrigues me. At face, I like it. It’d be a lot easier to know you’ve got your congressperson’s ear.

    But I hate to think of how much more their pension plans would cost us!

  14. mike from iowa 2021-04-15

    in 2013, there were three vacancies on the DC circuit court of appeals. Obama nominated three outstanding nominees and magats claimed he was court packing and that circuit could work just fine without anymore judges.

    This was just a part of magat obsruuctionism of Obama’s picks. When drumpf was appointed, McCTurtlefartface hollered to the high heavens he was going to pack every court with lifetime appointments, many of which were rated poorly by the ABA, just to turn the court far right and young so they can wreak havoc for decades.

    drumpf, in his usual stoopidity thanked Obama for leaving so many seats unfilled, completely ignoring the obstructionism of the past 8 years.

  15. Donald Pay 2021-04-15

    Nothing will come of anyone’s ideas about how the Supreme Court should be reformed. I have my own ideas, which I have given out a number of times on DFP and elsewhere. All ideas, even my vastly superior ones, are just a fart in the wind at this point. We should just admit that we are stuck with what we have, and it will take a 2nd Amendment solution to change anything. If you want a different Supreme Court, you have to have a good aim. I’m not advocating anything violent. I’m just stating reality.

    Our system is broken. At best we get 6-months of work out of one-half of Congress every four years. For four years we coasted with a President who watched TV all morning, took Putin’s foreign policy as his own, shoveled money to billionaires, including himself, and groomed a violent base of Republican nutcases and the cowards in the minority in Congress to oppose democracy and support a neo-Nazi autocracy.

    China, for all its faults, is going to kick our ass. American culture and western culture, built as it is on runaway selfishness, is being proven inferior. China stomped out Covid in 90 days with just commonsense public health measures. We are dealing with our 4th surge, and we’ve been vaccinating people for 3 months. Changing the Supreme Court is just rearranging the deck chairs as we slip after so noisily into the sea. We need to change a hell of a lot more than that. It would be a beginning to change the Supreme Court, but we need a whole hell of a lot of change beyond that.

  16. Bob Newland 2021-04-15

    Donald, your constant optimism is a great balancer for my cynicism.

  17. Mark Anderson 2021-04-15

    Well pub boys and girls, the mainstream of America is just getting tired of being ruled by the minority and the non-decisions they make. It’s really only a matter of time. I think it would be more fun to expand the House of Representatives to 666. That’s a joke of course but adding Puerto Rico as a state would be nice since the pubs have been ok with that in the past. It would be nice to see the contortions they would go through on that one. Its also good to see the idea of court expansion talked about, debating it would be good but the trumpies debating? When I was in high school my partner and I were extremely liberal so our coach put us on the negative side. It was so easy to be negative. That’s how pubs are formed.

  18. Arlo Blundt 2021-04-15

    well…I am predisposed to accept nine justices as the right size for the court. Courts and specific justices change their approach over the years. They tend to move to the middle and give the chief justice the benefit of the doubt in close decisions. This happened in the Warren and Berger courts (though Berger faced a revolt as some conservative justices (Harlan, Blackman) shifted from conservative to more liberal. We should let this play out on this court. I would support a mandatory retirement age though I suppose that reflects ageism, still, a mandatory retirement at 75 seems judicious.

  19. leslie 2021-04-15

    More on this complex issue later. Mfi covers mcturtleface quite well. His packing after Scalia’s death to present must be fully exposed.

    A f*cked up SCOTUS, fundamental voting right suppression, and Russian collusion undermining HRC’s and 2018 and 2020 elections require scorched earth, and rational Dem reaction now.

    Dems could lose in 2022. Massive obstruction and every other subterfuge is the GOP’s last chance. There is little time.

  20. Richard Schriever 2021-04-16

    Wayne – the recency of your, or this blog’s discussion of or attention to the issue is not what determines the recency of the existence of the issue. IE. because a ship suddenly appears on the horizon =/= its suddenly coming into existence. Likewise – whether or not it gas been a “popular” topic of discussion…….

    So – a study of the issue is – IMO – in order.

    “Do you really think the populace shouldn’t have a say in such a monumental shift?” Almost a verbatim recitation of the “McConnell” justification FOR – I repeat – FOR, in favor of, supporting relatively momentary political manipulation of the courts’ make-up. Under the “McConnell rule” any veneer of impartiality is LONG gone – just to remind you what that phrasing/logic has brought to the fore in much of the public mind. In the language of the courts themselves when it comes to argumentation and the examination of witnesses/topics, “That door has been opened – objection denied – proceed.”

  21. jake 2021-04-16

    13 is a fitting number, with strong consideration of term limits.

  22. leslie 2021-04-16

    The 2016 polling data Manafort shared with Kilimnik came from PA, WI, MI, and MN. Those data were used by Russia to target key voters. Trump won the election by just under 80K votes in three states. Which ones? MI, WI, & PA. COLLUSION by cheating GOP.

    Trump immediately (McConnell and Federalist Society) chose Gorsuch over Obama’s ignored choice, Garland as Scalia’s SCOTUS replacement. Cheating GOP.

    It is up to us to repair this damage now. 2022 could flip Congress.

  23. leslie 2021-04-16

    Cambridge Analytica contractor Sam Patten plea deal isn’t clear to most people yet – Konstantin Kilimnik (ex-GRU) worked for Patten in Russia 2001-2003 before Kilimnik worked for Manafort; Patten & Kilimnik formed company in 2015 & Patten contracted on shady Cambridge Analytica deals since 2014. [C/A principals dad and dau Mercer bankrolled Trump’s failing 2015 campaign] twitter.com/WendySiegelman 2018.

    Personal data of up to 87 million[34] Facebook users were acquired…. this gave… access to the majority of whom had not explicitly given Cambridge Analytica permission to access their data. Wiki

  24. leslie 2021-04-16

    Richard: “relatively momentary political manipulation”. Please. Not even close. Disinformation!

  25. David Bergan 2021-04-16

    Abraham Lincoln packed the Supreme Court with anti-slavery Justices.

    Personally, I believe it’s the Senate that needs reformation. Ever since the beginning that chamber (and its related effect on the electoral college) has made the country divisive. Because of the Senate we admitted states into the union as pairs, a free state and a slave state. Alaska and Hawaii were a modern form of that… a republican and a liberal state. South and North Dakota were split out of a single Dakota Territory so that Republicans could have twice the representation. Why don’t we make states out of DC, Puerto Rico, Guam, Samoa, etc? Only because of the impact it would have on the Senate. Why does anyone outside of California care if California splits into 2 or 5 smaller states?

    What’s the argument for the status quo with respect to the US Senate?

    Kind regards,
    David

  26. leslie 2021-04-17

    Web hlitches delayed this companion to morning comment on RIGHT WING TERRORISTS thread.

    “Late on Friday night, the Supreme Court issued a 5–4 decision in Tandon v. Newsom, which blocked California’s COVID-related ban on religious gatherings in private homes. Chief Justice John Roberts dissented, as did the three liberal justices, making Tandon yet another COVID decision in which Justice Amy Coney Barrett’s vote made the difference.***Although the conservative majority’s decision was unsigned and ran just four pages long, it radically altered the law of religious liberty.***the Court held that California had to let people gather indoors for Bible study because it allowed them to gather indoors to get a haircut, eat, or take a bus; if Californians can get pedicure, they must also be permitted to spend hours in close quarters discussing the Bible. And the Supreme Court created this sweeping new rule through its shadow docket—those cases decided with minimal briefing and no oral argument outside the court’s normal procedure.”

    No longer the “Roberts court” perhaps?

    https://slate.com/news-and-politics/2021/04/supreme-court-religious-liberty-covid-california.amp?__twitter_impression=true

  27. John 2021-04-24

    Folks thinking the Justices are not politicians in robes should consider these views from the 6-3 decision in: Jones v Mississippi.

    First, the justices casually threw out generations of precedents protecting juveniles who act criminally from death and life without parole sentences. https://www.cnn.com/2021/04/23/opinions/supreme-court-kavanaugh-sotomayor-jones-mississippi-williams/index.html

    Second, the “opinion” writer, Kavanaugh, whined at his nomination hearing, that drunken and deprived ‘high schoolers can change’. https://www.washingtonpost.com/opinions/at-the-supreme-court-a-tale-of-two-bretts/2021/04/23/61ec08b2-a45b-11eb-a7ee-949c574a09ac_story.html

    Yes, unfortunately justices exist that are “theirs” and “ours”. It is the way it is. Supreme Court term limits and rationed appointments are badly needed to restore legitimacy to the court.

  28. bearcreekbat 2021-04-24

    John, your comment seems to indicate that you found Sotomayor’s dissent in Jones on whether the decision failed to comply with binding precedent to be factually correct, and Kavanaugh’s explanation why the majority indicated its decision was fully consistent with precedent to be incorrect, perhaps even dishonest. If I have understood your position correctly, I would be interested in learning what facts lead you to such a significant evaluation and conclusion about Kavanaugh’s explanation?

    The opinion piece by Elliot Williams that you linked provides several compelling reasons why Jones was a poor decision, which I fully agree with, but seemed rather conclusory on the claim that Kavanaugh and the majority broke from binding precedent. Williams seemed to rely more on the obvious injustice of the decision than pointing to language from any holdings of earlier cases that required a contrary result. Sotomayor’s opinion was more nuanced, but also seemed somewhat sparse on this question.

    For those that aren’t inclined to read the actual decisions, here is Kavanaugh’s rationale claiming precedent did not require a different result:

    Today’s decision does not overrule Miller or Montgomery. Miller held that a State may not impose a mandatory life-without-parole sentence on a murderer under 18. Today’s decision does not disturb that holding. Montgomery later held that Miller applies retroactively on collateral review. Today’s decision likewise does not disturb that holding. We simply have a good-faith disagreement with the dissent over how to interpret Miller and Montgomery. That kind of debate over how to interpret relevant precedents is commonplace. Here, the dissent thinks that we are unduly narrowing Miller and Montgomery. . And we, by contrast, think that the dissent would unduly broaden those decisions. The dissent draws inferences about what, in the dissent’s view, Miller and Montgomery. “must have done” in order for the decisions to “make any sense.” Post, at 12 (opinion of SOTOMAYOR, J.). We instead rely on what Miller and Montgomery. said—that is, their explicit language addressing the precise question before us and definitively rejecting any requirement of a finding of permanent incorrigibility.
    . . .
    Despite the significant changes wrought by Miller and Montgomery. , the dissent now wants more—an additional constitutional requirement that the sentencer must make a finding of permanent incorrigibility before sentencing a murderer under 18 to life without parole. But to reiterate, in Miller and Montgomery. the Court unequivocally stated that such a finding is not required. And we will not now rewrite those decisions to impose a requirement that the Court twice rejected.
    . . .
    . . . Under our precedents, this Court’s more limited role is to safeguard the limits imposed by the Cruel and Unusual Punishments Clause of the Eighth Amendment. The Court’s precedents require a discretionary sentencing procedure in a case of this kind. The resentencing in Jones’s case complied with those precedents because the sentence was not mandatory and the trial judge had discretion to impose a lesser punishment in light of Jones’s youth.

    https://www.supremecourt.gov/opinions/20pdf/18-1259_8njq.pdf

    To be sure, I think Sotomayor had the much better argument on the merits of the case and I agree with most of what Williams wrote in the editorial you linked. As to the argument that the majority broke from some binding precedent, however, I am having difficulty finding the language that would have required the Court to either reverse the sentence or explicitly overrule the holdings in Miller and Montgomery.

    Focusing on an inadequately supported procedural argument, such as whether precedent required a contary ruling, seems to distract from the more important reasons why the decision sucks, namely, the horrendous and irrational injustice of permitting a State judge to impose lifetime incarceration without any opportunity for parole for terrible but stupid mistakes of immature children. In my view Jones should have applied the same limitation that Miller imposed on State legislatures to State judges (which seems to go much further than even Sotomayor argued). A single sentencing judge is surely just as capable, perhaps even more so, of imposing a sentence that by its very nature is inconsistent with the 8th Amendment limitations in light of what we have learned from science about a child’s culpability and potential for rehabilitation.

    In any event, as I stated, I would be interested in hearing what lead you to conclude that Kavanaugh and the majority actually overruled Miller and Montgomery despite the rational they offered, which seems, on its face anyway, to be an accurate description of the precedent in question?

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