The Supreme Court’s Assault on Science

That makes it an assault on science? Maybe it is bad and inhumane policy that is out of touch with what we know of neurodevelopment, but how is this is an assault on science?


Scientific knowledge about human development was brought to the attention of the court, but the court’s majority chose to ignore it. I would agree that the court did not directly assail science, but choosing to ignore it altogether does not bode well for our country’s jurisprudence, IMO.

And ignoring science was not even the most troubling aspect of the ruling, as you rightly point out, Joshua.


I’d be interested in the details of the actual ruling. Maybe the ruling was sound, and argued that the policy was bad or should do better at taking science into account, but it wasn’t unconstitutional, so it wouldn’t be right for them specifically to overturn it. Or maybe the case failed for some other technical reason, in which case the ruling might have give roadmap for the next challenge.

What say the lawyers? @David_MacMillan @Puck_Mendelssohn

See here:

This is regarding mandatory sentencing, which we have ample evidence is generally a bad idea with many many unintended consequences.

Reading further, this seems to reduce to a states rights reasoning for the majority.

They paradoxically reason that the virtues of discretionary sentencing are why the states right to mandatory sentencing should be honored??? Call me crazy, but that seems totally backwards to me. If they value discretionary sentencing, seems that they should be open to challenges of mandatory sentencing rules for denying the due process and causing cruel and unusual punishment in at least some cases.

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Well, what lawyers always say is “it depends.”

Before I address this I will stress that while my civil rights work did overlap with the world of criminal justice, I have never done criminal work and I do not have deep familiarity with the precedents here.

What we have is a situation where the Court has already said that there cannot be an automatic imposition of life-without-parole upon a juvenile. While it’s tempting to treat this as though this is a conclusion derived from the neuroscience of adolescent development, the fact is that science only very loosely informs the law here. The law has its technical and its moral content, and its moral content is informed more by values than by science, though science may of course bear upon those value judgments. The Eighth Amendment’s prohibition of “cruel and unusual punishments” clearly lies more in the zone of the moral than the technical. And when the questions are essentially moral, they are questions of values, and this means that we’ll get different answers from different people, none of which are necessarily right or wrong in the ordinary sense. Whose values? And by what standard, when the Supreme Court is holding forth upon the limitations upon how a state may implement these values, are these methods of implementing values to be judged? There is always some argument for deference to local discretion.

The difference between the majority and the dissent here is basically a kind of procedure/substance argument. The majority says that the protection is mostly procedural: that while a life-without-parole sentence may be imposed discretionarily, it may not be imposed mandatorily; if the protection is purely procedural, then this requires consideration by the lower court but it sets very little boundary on what that consideration may be of or what result may follow from a particular set of facts. If the protection is more substantive, then we have to say that not only may the LWP sentence not be imposed mandatorily, but it may only be imposed on the basis of specific standards and findings.

The majority is saying that if the defendant’s youth is considered, that’s enough. The dissent is saying that language in the two principal prior cases indicates that this is NOT enough – that since it is an Eighth Amendment violation to impose the sentence of LWP if we are not dealing with “irreparable corruption,” (various equivalent phrases are used at various points) there must be some finding of record which bears directly upon that question. The majority gives the lower court’s discretion a broader sweep by requiring less of the lower court in terms of accounting for its decision.

If you want a personal opinion, I’d rather the dissent had carried the day and I think that their reading of the prior cases honors the substance of those cases better. But I don’t think the majority opinion is outrageous. And I don’t see it as rejection of science. Science was not made the linchpin of the argument, so far as I can see, by anyone here.

And when it comes to courts being informed by science, we do have to remember that this stuff is not in courts’ wheelhouse. All the range of human behavior from the most generous and kind to the most depraved and cruel comes before courts, and for a thousand years it has been thought – and is still, in most situations, thought – that a degree of subjective judgment has got to come into it to weigh degrees of culpability and the appropriateness of remedies in the light of human experience itself, as lived. Equity and law are seldom reducible to fixed and certain formulae. It is not clear HOW the neuroscience, for example, should inform criminal justice. Should it mitigate sentences? Or should it drive legislative reform to improve rehabilitation? Or should it operate in some other fashion? And how are courts to weigh the neuroscience, against natural human rationales for guilt and for sentencing? We have not fully disposed of an eye for an eye, and it’s not clear that we should fully dispose of it (well, in the literal case it probably is clear; but in the figurative sense, less so).

Bear in mind, too, that one reason courts are reluctant to rest the whole question upon science is that we don’t have the best track record there. Buck v. Bell was driven by eugenic policies for forced sterilization, and when Oliver Wendell Holmes said that “three generations of imbeciles are enough,” in the course of committing a grave crime against humanity, he thought he had the science on his side. Better values, and less “science” as then considered by the court, would have produced a better decision.

I don’t see that. Can you point me to the passage you’re referring to? Both the majority and the dissent are saying that the state does NOT have the right to impose mandatory LWP sentencing here. The majority is saying that the state does have the right to allow such sentencing to be imposed discretionarily, and the minority agrees with that but thinks that the state’s power is constrained a bit more narrowly in terms of that sentence requiring a particular factual finding.


From wikipedia…

The Court issued its decision on April 22, 2021. The Court ruled 6–3 to affirm the Mississippi Court of Appeals decision to maintain the life sentence against Jones.[10] Justice Brett Kavanaugh wrote the majority opinion, which was joined by Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett. Justice Kavanaugh wrote in his opinion that "Determining the proper sentence in such a case raises profound questions of morality and social policy. The States, not the federal courts, make those broad moral and policy judgments in the first instance when enacting their sentencing laws. And state sentencing judges and juries then determine the proper sentence in individual cases in light of the facts and circumstances of the offense, and the background of the offender." As such, Kavanaugh concluded that “a discretionary sentencing system is both constitutionally necessary and constitutionally sufficient”.[11] Justice Clarence Thomas wrote a concurring opinion.

Note that in the particular case under consideration, it was a mandatory life sentence imposed by state law.

Unless that is quote mine, it appears they are arguing for a state imposed (vs. federal) mandatory sentence by extolling the virtue of discretionary sentence. If that is the case…well, what gives?

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Thanks. I very much appreciate that interpretation. It gives some perspective.

Not a quote mine. I think that the only issue is that you’re unclear on the exact procedural situation, and I think I can clear it up.

The applicable statute provided a mandatory life-without-parole sentence, and the court imposed that (see slip opinion at p. 3). After the Supreme Court held a mandatory LWP sentence for a juvenile unconstitutional in Miller v. Alabama, it was clear that the original mandatory sentence couldn’t stand and that a resentencing hearing must be held. A resentencing hearing was held, and the court made the discretionary ruling that a LWP sentence was appropriate in this case (slip opinion p. 4).

So the first sentencing is basically, as we like to say, a “nullity.” That sentence was set aside and no longer exists. The resentencing, however, arrived at the same result via a discretionary decision rather than a statutory mandate, and that’s the sentencing process Kavanaugh is approving of in the passage you quote. So he’s not using the merit of a discretionary system to approve of a mandatory sentence, but rather to approve of this discretionary resentence.


I appreciate the analysis, @Puck_Mendelssohn .

Eugenics was never about science; it was outrageous prejudice dressed up in the trappings of scientific terminology. It is quite unfortunate that our courts are reluctant to employ reliable scientific findings because of an unfortunate episode a century ago. I am reminded of the Supreme Court’s rejection of statistical analysis in the recent gerrymandering case (apologies for the lack of citation, I don’t remember the litigants). Anything based on math harder than the 4 elementary operations is apparently beyond the capabilities of jurisprudence, if the majority justices are to be believed.

In Jones v. Mississippi, it would seem that the major disregard for science was present in the lower court that held the sentencing hearing. The Supremes then chose to apply the principle of deference to the lower court’s findings, regardless of how ill-informed they were from the perspective of science.

Would that be a reasonable take on Jones v. Mississippi, Puck?


True, though I don’t really mean to suggest that Buck v. Bell is the only example of the problem. Our courts have always had a rough time integrating science with the law – in a case like Buck v. Bell one of the issues becomes: who is the arbiter of good science? States, not the federal courts, started compulsory sterilization programs, and one of the constant problems of constitutional law is the demarcation of responsibility between legislatures (which are empowered to set policy within very broad limits) and courts (which are empowered to say what those limits are). And so part of the question winds up being, if one faces it squarely, not just “what is good science?” but also “do we have to defer to a legislative body which thinks something is good science?”

You see that issue everywhere. Take Kitzmiller. One approach, which some people would like to take, is to say that there is almost no limit to what a school board, in its discretion, may decree to be in-bounds for science classes: sure, ID may have religious implications, and sure, actual scientists may dispute whether it’s really science at all, but isn’t it up to the school board, as guardians of the children’s education, to say so? And if ID were MERELY nonsense, a court would probably take exactly that path: a school which decided to teach Velikovsky would probably be acting lawfully, if inadvisably. The limiter upon discretion, of course, becomes the First Amendment: one may have almost boundless discretion to ruin the education of children and fill their heads with tosh, but when that tosh is motivated by a desire to undo secular government and use taxpayer funds to teach fundamentalism to children, constitutional issues rear their heads.

But, of course, you get these boundary questions. What if ID had some plausible claim to being legitimate science? Surely the fact that it has potential implications for religion could not make teaching it unconstitutional if there were sound secular reasons for teaching it. Stephen Meyer may think, as he argues in his latest book, that the Big Bang points to a god, but that doesn’t mean we shouldn’t teach about it in the schools. And so we wind up, at the boundaries, with judges well outside of their fields of expertise, attempting to grapple with these boundary issues.

Yeah, that’s about the size of it. I don’t know how much “science” as such was presented at the sentencing hearing, and one would have to consult the record to get any sort of good idea on that point, but it sounds as though the court below did little more than say that he considered the defendant’s immaturity but didn’t think it was sufficient to justify not imposing the maximum. One issue here is that we tend to defer to trial courts in such matters anyhow. An appeals court hasn’t had the defendant in the courtroom and hasn’t heard the testimony of witnesses, and so appeals courts give high deference to findings of fact and (theoretically, at least) no deference to rulings of law.

But it’s a bit like that legislative/judicial boundary decision thing. Whenever there is discretion being exercised, there are limits, and the question here is whether we should place particular limits – this “irreparable corruption” type test – upon the matter. Now, one thing I would point out is that I’m not sure that this “irreparable corruption” really maps to any scientific finding or principle, either – so there is a sense in which it’s not clear to me that the dissent is THAT much more science-friendly. How on earth is a judge supposed to know, from the evidence, whether the defendant is irreparably corrupt? While neuroscience gives us some general insights into the nature of the brains of young people, it’s hard to say in neural terms what this “irreparable corruption” is and even whether there is any such thing, much less to test the defendant in some sort of clinical setting to figure out whether he is or is not irreparably corrupt.

Law lives in a land of stories, anecdotes, moral ideals, themes, folk wisdom, philosophy, and intuition, and it weaves all these elements together in the form of a tradition; it is almost a folkloric, crowd-sourced process. But it jackets these things in a kind of formalism which makes it sound like the law is rules and principles and logic. The law is really a hybrid of all of these things, and this is in some sense the unreformable problem of law in general: the law must deal in these things because these things are the landscape in which human experience exists. How to improve the administration of the law by importing insights from the sciences is almost always a more difficult problem than it seems at first blush.

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