09 Nov Constitutional Comparativism and Juvenile Life Without Parole
As I reported here, the two cases of Sullivan v. Florida and Graham v. Florida present the best opportunity for constitutional comparativism since Roper v. Simmons. We apparently are an international outlier and the Convention on the Rights of the Child, with 190 parties, categorically prohibits JLWOP for everyone under the age of eighteen. But from reading the transcripts in today’s oral arguments (see here and here), you would never guess it.
None of the usual suspects raised the issue, despite the fact that the parties and numerous amici raised it in their briefs. Justices Sotomayor and Ginsburg were active interlocutors, but neither broached the topic. Justices Kennedy, Stevens, and Breyer were remarkably quiet, and the conservatives–particularly Chief Justice Roberts–led the charge for a case-by-case proportional approach the would eschew any categorical rule.
Of course, oral arguments are poor predictors of the result or reasoning of the Court. But based on almost two hours of oral argument, I seriously doubt the issue of international law or foreign practice will merit any discussion by the Court.
As I have written elsewhere, the constitutional comparativism revolution may be fading. It’s been over six years since Justice Breyer waxed poetically about the “bliss was it in that dawn to be alive” in this new age of constitutional comparativism. We’ve heard nary a peep from the Court on this issue since March 2005.