Some thoughts on Winters' take on the Court's decisions

I assume that it is endearing modesty, and not disingenuous needling, that prompts Michael to write that he is waiting for someone who "unlike yours truly, actually knows something about constitutional law and theory, to tell us whether, in his/her judgment, SCOTUS decided rightly today in the Eighth Amendment case about juveniles and life-without-the-possibility-of-parole sentences."  The publishers of Michael's dozen-or-so books on constitutional theory might have a different view!

First, Robby is right.  I mean no disrespect to Michael Sean Winters, but I think it is a mistake to endorse the Court's reasoning, and its judicial work, if by this endorsement one actually means to communicate only that one disapproves of the policy that the Court struck down (in the juvenile-parole case).  As it happens, I think it is bad policy -- unjust policy, even -- for a state to authorize life-without-parole cases for non-homicide offenses committed by juveniles.  (I think, actually, that LWOP sentences are probably never justified.)  But, Justice Kennedy's reasoning and methodology are, in my view, not made sound merely by the fact that I dislike (as Michael W. does) the policy he invalidated.

Second, I think it's pretty clear that the theory of constitutional interpretation and the judicial role that Michael has sketched, defended, and applied in some of his recent books points in a different direction from the one the Court took.  But, if I'm wrong about this, he can set me straight. 

I also have to disagree with Michael W. about the Comstock case.  Now, that case -- in its present posture -- is more about the reach of federal power than it is about whether these sexual-offender-commitment statutes can be reconciled with offenders' constitutional rights (as Justice Breyer notes).  In my view, the Court is wrong about the federal-power question, and the no-release rule is unjust (deeply so).  The Court's answer to the federal-power question flies in the face of the very nature of the Constitution, and its answer to the no-release rule is hard to reconcile with a commitment to appropriate process in criminal cases.  But again, I'd love to know if Michael disagrees.