Justice Scalia’s last opinion was his dissent in Montgomery v. Louisiana, issued on January 25, 2016, 19 days before his death.* Yesterday’s ruling by the Supreme Court in Jones v. Mississippi may easily be read as vindicating his dissent.
At the risk of getting you lost in the weeds of the Court’s often impenetrable rulings on habeas matters, let me offer a brief overview.
In its ruling in 2012 in Miller v. Alabama, the Court had held (over the dissent of Scalia and three other justices) that the Eighth Amendment forbids imposing on juvenile homicide offenders a sentencing scheme that mandates life in prison without possibility of parole. The legal question in Montgomery was whether the rule announced in Miller was substantive, such that it applied retroactively in habeas cases, or only procedural. The Montgomery majority held that it was substantive. Scalia vigorously disagreed. Indeed, he also disagreed on the threshold question whether the Court had jurisdiction over the case.
For a fuller account of Scalia’s dissent, I’ll refer you to Matt Franck’s excellent account from his valedictory to Scalia. Here’s how Matt sums it up:
Scalia’s Montgomery dissent is an apparently effortless tour de force. It seamlessly combines logic, a comprehensive grasp of precedent, a complete mastery of the relation between the Constitution and statute law, and a deep respect for federalism and the right of the states to have their own systems of criminal law. And it pours justifiable derision on the “pure applesauce” (as Scalia famously said elsewhere) of the “living Constitution,” while resting sturdily on the firm foundation of jurisdictional and interpretive principles that should limit federal judicial power.
In yesterday’s decision in Jones, the majority ruled that, notwithstanding that Montgomery had determined the rule announced in Miller to be substantive, the Court in Miller “mandated ‘only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing’ a life-without-parole sentence.” (The internal quote is from Miller.) Justice Thomas (in his opinion concurring in the judgment) and the dissent by the three liberals (written by Justice Sotomayor) agreed that the majority’s reading was not in fact faithful to Montgomery. Extensively citing Scalia’s dissent, Thomas argued that the majority “adopts a strained reading of Montgomery … instead of outright admitting that it is irreconcilable with Miller.” And the dissent charged that the majority “reprises Justice Scalia’s dissenting view in Montgomery.”
* Scalia issued a dissent in another case that same day, but because Montgomery was announced after that other case, his dissent in Montgomery deserves to be credited as his last opinion.