Justice Stevens reminds us why we’ll miss him:
While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old, see post, at 4, 10, n. 3, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.
Graham v. Florida, 5__ U.S. ___, ____ (May 17, 2010) (Stevens, J., concurring). The case concerns a simple question — whether a juvenile can, subject to the Eighth Amendment, be imprisoned for life without possibility of parole for a non-homicide crime — which the Court answered in the negative. Court-watchers should note that the Eighth Amendment is one of the rare creatures that all parties concede evolves with society, so the Court’s 6-3 endorsement of evolving norms needn’t be read as the larger, ringing endorsement of a “living Constitution” that we deserve. But Stevens’ concurrence, joined by Ginsburg & Sotomayor, can. These proxy wars are fairly regular in Court history and may, at least, allow us to put to bed the notion that Sotomayor was insufficiently liberal. If she’ll join Ginsburg and Stevens on these opinions, I’m happy. But what about Kagan?