(The exception is if the Court pronounces a new “watershed” procedural rule that reshapes the “fundamental fairness” of American criminal law—something on the same order of magnitude as, say, requiring states to provide lawyers for poor defendants. But the Court has yet to hand down a “watershed” rule since theorizing about it, and it seems unlikely to do so in the future.)
For the Montgomery majority on Monday, Miller clearly created a substantive rule to be applied retroactively. “Because Miller determined that sentencing a child to life without parole is excessive for all but ‘the rare juvenile offender whose crime reflects irreparable corruption,’ it rendered life without parole an unconstitutional penalty for ‘a class of defendants because of their status’—that is, juvenile offenders whose crimes reflect the transient immaturity of youth,” Kennedy wrote. “As a result, Miller announced a substantive rule of constitutional law.”
Justice Antonin Scalia, who dissented alongside Justices Clarence Thomas and Samuel Alito, sharply disagreed. He began by challenging the jurisdictional grounds, arguing that Montgomery’s case was still in the state courts, not the federal courts, and therefore should be beyond the Court’s interference for now.
The majority disagreed. When a new substantive rule guides the outcome of a case, the Court ruled for the first time, state courts must also apply new substantive rules retroactively, not just lower federal courts. Since Miller’s rule emanated from the federal Constitution, the Louisiana Supreme Court’s refusal to apply it invited the U.S. Supreme Court’s intervention.
Scalia then turned to the substance. “Having distorted Teague, the majority simply proceeds to rewrite Miller,” he wrote, noting that the Court in Miller wrote that the ruling “does not categorically bar a penalty for a class of offenders or type of crime ... Instead, it mandates only that a sentencer follow a certain process.” This, he argues, indicates a procedural rule, not a substantive one.
Kennedy countered by citing the Court’s ban on executing people with intellectual disabilities, noting that inmates must still show evidence of their disability at a hearing. “Those procedural requirements do not, of course, transform substantive rules into procedural one,” he wrote for the Court. “The procedure Miller prescribes is no different.”
But Scalia sensed more at work. “This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders,” he replied. The majority cannot ban it outright, Scalia suggests, because Kennedy himself cited the punishment’s existence to justify abolishing the death penalty for juvenile offenders in Roper in 2005.
Now the majority’s only recourse, Scalia argues, is to make it impossible to carry out through these new hurdles. “And then, in Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply ‘permitting juvenile homicide offenders to be considered for parole,’" he concludes. “Mission accomplished.”