More on the "sound"-ness of the Graham decision

As Robby has described (here), Michael Sean Winters recently wrote, with respect to the Graham decision (invalidating LWOP sentences for non-homicide crimes committed by juveniles), the following:

"If by this Professor George means that no one but a legal scholar is permitted to assess the basic justice of a court ruling, I will look forward to his making that point at next year’s annual March for Life. I deny the exclusive right to judgment by a priestly legal caste which alone can judge whether or not a given decision by the Court meets the standards of justice I think should be met. And every citizen has the same right to question the Court."

I agree with Michael that it is not the case -- I do not believe it is the case, nor does Robby -- that there is an "exclusive right to judgment by a priestly legal caste which alone can judge whether or not a given decision by the Court meets the standards of justice [one] think[s] should be met."  And, I definitely agree -- Robby does, too -- that "every citizen has the same right to question the Court."

As Michael W. and I have discussed, I fear that I was unclear in some of my earlier comments.  Responding to my expressed concerns about the decision, Michael wrote:

Professor Garnett disagrees with the policy at issue, but thinks it is not the place of the Court to decide if a policy is just or not, that such tasks are relegated to the legislature. It is a perfectly respectable argument, but not a definitive one. 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.

To be clear (this time, unlike last time!), it is not my view that the Court has no role to play in interpreting and enforcing the Eighth Amendment.  Nor is it my view that the judicially enforceable content of that Amendment was fixed in 1791 or 1868.  It is my view, though, that unelected federal judges should exercise great care when identifying the line between "unconstitutionally cruel and unusual punishments" and "punishments that, in the view of the judges in question, are unwise, excessive, or even unjust."  And, in my view, a penalty that is authorized (even if not often imposed) by the political authorities of thirty-something states is almost certainly not unconstitutional.

When Michael praised the Court's decision, he meant to communicate, I think, that "the policy in question is unjust, and therefore the Court was correct in concluding that it ought to be, and is, prohibited by the Constitution."  For me, though (I think, for Robby) there is a difference -- a difference that, given the limited authority and role in our constitutional democracy for the Court, really matters -- between saying that "the state of affairs brought about by the Court's decision represents an improvement in the justice of our criminal-justice system" and "the Court's decision is 'sound.'"  For me -- more than, I think, for Michael -- it is a "cost", a departure from justice, when our Supreme Court overreaches to invalidate even unjust immoral enactments of politically accountable representatives.  (Sometimes, of course, the Court appropriately invalidates legislative enactments; the key is to identify the "overreaches" and distinguish them from the appropriate invalidations.)