By Marsha Levick and Riya Saha Shah
As the U.S. Senate continues its mad dash to confirm Judge Amy Coney Barrett for a life term on the United States Supreme Court, not one senator has questioned how youth might fare under this Court.
While she has a scant record on issues concerning children, her originalist judicial philosophy – tethered to her late mentor, Justice Antonin Scalia — makes it clear that, if confirmed, Barrett could undo critical Supreme Court rulings of the last 15 years which substantially advanced and protected children’s rights. In a series of cases involving sentencing, police interrogation and school searches, the court has repeatedly recognized that children are different and that children’s constitutional rights must reflect and adapt to those differences.
In 2005, in Roper v Simmons, the court categorically banned the death penalty for all youth under 18, citing emerging science proving key developmental differences between children and adults that diminished youth’s blameworthiness for even the most heinous criminal conduct.
In the years following, the court also banned life without parole sentences for youth convicted of non-homicide offenses in Graham v Florida and mandatory life without parole sentences for youth convicted of homicide in Miller v Alabama.
In Montgomery v Louisiana the court held Miller must be applied retroactively to all people currently serving juvenile life without parole sentences because it established a new substantive constitutional rule. This term, the court will consider whether a sentencing court must make specific findings prior to sentencing a child to life without parole.
In addition to this quartet of Eighth Amendment challenges to extreme sentencing of youth under the Constitution, the court has also expanded children’s rights and protections in other spheres.
In 2010 in J.D.B. v North Carolina, the court held that a child’s age must be considered when determining police custody for Miranda warnings. The court is set to review whether a foster care agency has the right, based on its religious beliefs, to reject LGBTQ foster parents – possibly eliminating a critical resource for children in need of care outside their homes, and especially LGBTQ youth.
In all of these decided cases, Scalia dissented but could not persuade a majority of the Court. Will the appointment of Barrett tip the scales?
Like Scalia, Barrett looks to the “original” meaning of the framers in interpreting the Constitution.
Applying this approach in the juvenile death penalty case, Scalia observed that when the Constitution was first adopted, children as young as seven were theoretically subject to the death penalty.
In the decision banning mandatory life without parole, Justice Scalia wrote that the Cruel and Unusual Punishments Clause, as originally understood, prohibited only “torturous methods of punishment.”
Along with Justice Clarence Thomas, he asserted that the idea that the mandatory imposition of an otherwise-constitutional sentence renders that sentence cruel and unusual finds “no support in the text and history of the Eighth Amendment.”
Incredibly, Scalia made clear his opposition even to a decades-old ruling banning mandatory imposition of the death penalty. Scalia again dissented in Montgomery v Louisiana, which applied Miller retroactively, vehemently rejecting the core principle of the majority (and federal retroactivity doctrine) that once a punishment is declared unconstitutional, no person should continue to suffer it.
Fundamental to Scalia’s reasoning in all of these cases was a rejection of the “evolving standards of decency” theory relied upon by the majority in favor of an originalist view of a Constitution drafted over 200 years ago.
JScalia also dissented in J.D.B. v. North Carolina, rejecting the individualized approach to a Miranda analysis in favor of the traditional one-size-fits-all approach that explicitly relied upon adult experience and understanding to measure how a child would react to the same interrogation circumstances. This reasoning flatly rejected the scientific underpinnings of the court’s sentencing cases.
Importantly, in the wake of these Supreme Court cases, children – and most especially Black and Brown children who are disproportionately targeted and ensnared by our justice system — have benefitted from the court’s rulings.
The court’s acceptance of emerging scientific research has allowed lower federal and state courts across the country to likewise support the differential treatment of youth, including narrowing the circumstances under which children can be prosecuted as adults, limiting the use of strip searches in detention centers, abolishing all mandatory sentences for youth, expanding youth records expungement, and adopting Fourth amendment protections unique to children.
Throughout his dissenting opinions, Scalia’s stagnant constitutional analysis, to which Judge Barrett subscribes, was at odds with our society’s moral growth and development and ignored the potential impact of previously unknown — and unknowable — scientific developments. If research establishes that children are less morally culpable than adult offenders, or development different in other ways that compel greater protections, then a just society cannot tolerate a system of justice or laws that ignores such distinctions.
Barrett is widely seen as Scalia’s heir on the Supreme Court given her adherence to his originalist philosophy. Her appointment puts in danger the constitutional rights of children and youth.
Marsha Levick is the Chief Legal Officer of Juvenile Law Center. Riya Saha Shah is the Managing Director of Juvenile Law Center. They write from Philadelphia.