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Opinion At the Supreme Court, a tale of two Bretts

Justice Brett M. Kavanaugh at the Capitol in December 2018.
Justice Brett M. Kavanaugh at the Capitol in December 2018. (Jabin Botsford/The Washington Post)
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Supreme Court Justice Brett Kavanaugh has enjoyed a life of comfort and privilege, the son of a Beltway lobbyist and the product of the Ivy League. Mississippi prisoner Brett Jones has endured a life of misery and abuse, the son of an alcoholic father who brutalized his mother and a stepfather who beat him.

As fate would have it, their lives converged this week: In an opinion released Thursday, Brett Kavanaugh upheld Brett Jones’s sentence to life in prison without the possibility of parole for killing his grandfather just 23 days after his 15th birthday. (And, yes, let us pause here to note a certain irony in the fact that the opinion was written by a justice whose confirmation hearings featured discussion about how people can change after high school.)

The 6-to-3 ruling in Jones v. Mississippi was notable not only for the juxtaposition of the two Bretts. It offered a snapshot of a court transformed by the arrival of Kavanaugh and two other conservative justices named by President Donald Trump. And it demonstrated how a conservative majority bent on reshaping the law can do so without the showy fanfare of explicitly overruling precedents.

Until Thursday, the arc of the court’s rulings on severe punishments for juvenile offenders bent toward leniency. Driven by former justice Anthony M. Kennedy, for whom Kavanaugh clerked and whose seat he now occupies, the court repeatedly ruled that the fact of a criminal offender’s youth made all the difference in the constitutionality of the punishment.

In 2005, the court banned the use of the death penalty for juvenile offenders. Five years later, calling a life sentence without any possibility of parole “an especially harsh punishment for a juvenile,” it barred such sentences for minors convicted of crimes short of murder.

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In 2012, it ruled that mandatory sentences of life without parole could not be applied to minors even for murder; sentencing authorities, the court said, must distinguish “between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.”

And in 2016, the court, emphasizing that “a lifetime in prison is a disproportionate sentence for all but the rarest children” and that “children who commit even heinous crimes are capable of change,” applied that decision retroactively, to the 2,100 prisoners already sentenced to life without parole for the crimes they committed as juveniles.

Jones was one of them. But at a new sentencing hearing, a Mississippi judge said that life without the possibility of parole was warranted, even after considering factors “relevant to the child’s culpability.” The judge made glancing reference to Jones’s youth — he noted that Jones thought he had gotten his girlfriend pregnant, “which demonstrates that the defendant had reached some degree of maturity in at least one area.”

But the judge didn’t consider whether Jones was among the “permanently incorrigible” who could be put away for life with no hope. That was the issue that made its way through the Mississippi courts to the Supreme Court.

Leave aside the question of whether a civilized society should ever consign a child to life behind bars, with no hope of release. The newly bolstered conservative majority said the court didn’t even have to address the question of permanent incorrigibility. As long as there is some leeway to consider the offender’s age, it said, “a discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.”

This is cruel and unnecessary: Requiring a judge to find that minors are “permanently incorrigible” before putting them away for life would not hurt Mississippi’s ability to severely punish heinous crimes. If minors are deemed incorrigible, they can be denied any chance of parole. And if they don’t fall into that worst of the worst category, the state still doesn’t have to grant parole. It just has to hold out that hope.

“Please give me just one chance to show the world, man, like I can be somebody,” Jones told the sentencing judge.

In eliminating that possibility, Kavanaugh and his colleagues pretended that they were simply applying the court’s precedents — indeed, that they were forced by the previous decisions to reject Jones’s claim. The flimsiness of this claim was underscored by Justice Clarence Thomas. Concurring, Thomas said the majority had overruled its most recent precedent, “in substance but not in name,” but simply wasn’t willing to own up to it.

The dissenters were more biting, saying that the ruling “guts” the court’s precedents, rewriting the cases on juvenile life without parole “to say what the Court now wishes they had said” and then denying it had engaged in such dishonesty. “The Court is fooling no one,” wrote Justice Sonia Sotomayor, joined by the two other remaining liberals, Justices Stephen G. Breyer and Elena Kagan.

And here is where Jones v. Mississippi resonates beyond the sad circumstances of Brett Jones, who at 31 has spent more than half his life behind bars. “How low this Court’s respect for stare decisis has sunk,” lamented Sotomayor, referring to the doctrine by which the court only overturns its precedents when there is “special justification” for acting. “Not long ago, that doctrine was recognized as a pillar of the ‘rule of law,’ critical to ‘keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.’ ”

She was quoting from a Kavanaugh concurrence last year, outlining his approach to reversing precedent. Fine, noble words — undercut by the actions of a conservative majority that now has its thumb firmly on that scale.

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