In 2005, Brett Jones, a 15-year-old white kid from Mississippi, was convicted of murder. Jones claimed self-defense, but a jury found him guilty of murdering his 67-year-old grandfather, with whom he lived. Jones was sentenced to life without parole, the mandatory sentence in Mississippi at that time. Later, in the 2012 case Miller v. Alabama, the Supreme Court ruled that mandatory life-without-parole sentences for juveniles were unconstitutional. Jones appealed his sentence, but the judge again sent him away for life without parole, this time noting he was doing so despite the option of offering a lighter sentence.
In 2016, the Supreme Court issued a follow-up decision making Miller retroactive for those who had been sentenced before the case was heard. The justices reiterated that “a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect ‘irreparable corruption.’” (The legal term of art is “permanent incorrigibility,” which allows judges to sound like they’re debating whether Tom Sawyer should be sent to bed without dinner.) In light of that additional ruling, Jones again appealed his sentence. This time his case made it all the way to the Supreme Court. But the court ruled that Jones, now 32, should stay in prison for the rest of his life without the possibility of parole.
The justice who wrote that opinion condemning a man to life in prison for a crime he had committed before he finished high school was the same justice who was accused of trying to rape a girl while he was in high school: Brett Kavanaugh.
The first thing that strikes you about Kavanaugh’s opinion is the nerve of the thing. The ruling against Jones was 6-3, with all of the conservatives sticking together. Their reasoning: There is no requirement that judges engage in actual fact-finding to determine “incorrigibility” before sending a juvenile away forever. Any one of those conservatives could have written the majority ruling. For Chief Justice John Roberts to assign this case to Kavanaugh, and for him to accept that assignment, is just part of the long-term conservative project to pretend that Kavanaugh’s checkered and disgusting past does not exist.
But Kavanaugh does have a past, and knowledge of his predatory baggage is impossible to memory-hole as you read his opinion weighing Jones’s fate. Every argument Kavanaugh made in his own defense at his confirmation hearing should have redounded to Jones’s benefit in this case.
Kavanaugh, you’ll remember, asked to be judged by the man he’s become—the high school girls’ basketball coach who hires women as his law clerks—not the beer-loving alleged attempted high school rapist he was. He argued, in angry, sneering tones, that his youthful indiscretions (the ones he admitted to, at least) should not bar him from getting a lifetime job. But having been gifted that lifetime power, he turned around and argued that Jones’s youth was no bar at all to a lifetime of imprisonment.
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In his opinion, Kavanaugh tries to distract from his obvious moral hypocrisy by suggesting, ever so mildly, that he may not have agreed with the actual sentence but was merely bound by his interpretation of the role of the court to uphold it. He wrote that his opinion should not be taken as “agreement or disagreement” with the sentence, then distanced himself still further by adding that “broad moral and policy judgments” should be left to the states. Kavanaugh has a habit of doing this in his opinions: making bad decisions and then adding language suggesting he was just going along with the crowd.
But Kavanaugh couldn’t remain consistent for a full calendar week on whether the federal court should weigh in on the appropriateness of punishments issued by local and state institutions. Mere days after the court published his opinion in the Jones case, it heard oral arguments in the case of Brandi Levy. Levy, then 14, had failed to make her high school varsity cheerleading squad. She went home and posted a picture on Snapchat with the comment “Fuck school fuck softball fuck cheer fuck everything.”
Aside from the lack of commas, I don’t see why the school would have a problem with this, but the cheerleading coach saw the post and suspended Levy from the junior varsity cheerleading team for the rest of the year.
It’s a Supreme Court case because of the First Amendment issues at play, but during the oral arguments Kavanaugh spent most of his time clutching his pearls over the severity of the punishment. He said, “So maybe what bothers me when I read all this is that it didn’t seem like the punishment was tailored to the offense.”
To recap: Kavanaugh is deeply concerned about a local school suspending a kid from cheerleading practice but can do nothing about a local court sending a kid to jail for life without parole.
I wonder if Kavanaugh’s opinion in the Jones case would have changed had Kavanaugh been accused of stabbing somebody instead of trying to rape somebody at a beach party? Because the only through line I can find in Kavanaugh’s approach to juvenile punishment seems to be whether or not he can put himself in the shoes of the accused delinquent. He can understand kids who get drunk or cheerleaders who curse or dudes who sexually assault. Some of these were his own experiences growing up, and he recoils at the thought of consequences or accountability for those actions. He recognizes Levy’s experience.
The Jones case is happening to somebody else. Jones was a poor kid from a dysfunctional home. Kavanaugh likely didn’t know kids like Jones, much less hang out with them, and so the moral outrage he brought to his own confirmation hearing or the Levy oral arguments never shows up here. Instead of grand pronouncements about how adults should treat kids who are troubled, which he made during the Levy arguments, Kavanaugh offered only raw statistics about the number of juveniles who commit murder in his Jones opinion.
Kavanaugh closes his opinion by telling Jones to plead his case for clemency to the “state legislature, state courts, or Governor.” It’s another classic Kavanaugh move. He’s always happy to sidestep responsibility. That’s just the permanently incorrigible man he’s become.
