On The Atlantic’s website, Stuart Taylor wonders whether Elena Kagan would have joined Justice Kennedy’s majority opinion earlier this week in Graham v. Florida, which ruled that it is constitutionally impermissible to sentence a juvenile offender to life in prison without parole for a nonhomicide crime. I see that Taylor thinks as much of the majority opinion as I do. A few excerpts:
Stripped to its essence, the decision was based on little more than the personal policy preferences of the five majority justices — preferences with which I happen to agree.…
Kennedy’s bald claim that “a national consensus has developed against” a life-without-parole sentence for any juvenile, ever, was transparently false.… [W]e are far closer to having a national consensus in favor of — not against — life without parole for non-homicidal juveniles in extreme cases….
But didn’t Justice Sonia Sotomayor, who joined the Kennedy opinion, testify at her confirmation hearing last year that “American law does not permit the use of foreign law or international law to interpret the Constitution?” Yes, she did. That testimony now appears to be inoperative.