More from Michael Sean Winters on the Graham decision, et al.

Michael Sean Winters responds here to recent posts by Robby and me, in which we expressed some disagreement with the Court's recent Graham decision, in which the Court ruled that it is unconstitutional to sentence someone to life-without-parole for a non-homicide crime committed as a juvenile.

Also very worth reading on this matter is this piece, by Benjamin Wittes, which Winters also engages. 

Winters writes:

This commitment to judicial restraint is undoubtedly true about some policies, but the policy in question is about punishment, and the Constitution, which the Court interprets, guarantees you and me the right to be free from cruel and unusual punishment. I do not see why the legislature in Florida should receive carte blanche to decide what is and is not cruel anymore than I think they can decide what is, and is not, protected speech under the First Amendment. The Florida legislature, after all, did not do such a great job interpreting the requirements of the equal protection clause for many years.

I emphatically do not want the Supreme Court to yield its authority to interpret the guarantees in the Bill of Rights to any legislature. Is it really that hard to believe that a legislature could adopt a statute the plays well politically but which violates the constitutional rights of citizens? Or, that 37 state legislatures may have over-stepped into cruel, and therefore unconstitutional, territory? The judicial branch is the least responsive to popular opinion for a reason, because sometimes the mob seeks injustice, and the political branches cave. I think the Founders knew what they were doing in creating one branch that was removed far from the popular will.

This excerpt makes me worry that my own post, to which Winters was responding, was not sufficiently clear.  My point is not that the Court lacks authority to interpret and enforce the Eighth Amendment.  Rather, it is that the judicially enforceable content of the Amendment needs to be very carefully identified, in a way that is sensitive to the danger that judges can confuse their policy preferences with the Constitution's requirements.  It's not a question of giving "carte blanche" to the Florida legislature, or even of denying the claim that the 8th Amendment's meaning "evolves."  Rather, it's a question of according appropriate skepticism to a claim that the Constitution prohibits, as "cruel and unusual", a penalty that 37 (I think) states authorize.