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Initial Thoughts on the Malvo Argument

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Here are some initial impressions after reading the transcript in the D.C. Sniper case of Mathena v. Malvo, argued today in the U.S. Supreme Court. (See yesterday's post for background and links.)

The Court is in a difficult situation because of the Montgomery opinion's dishonest misrepresentation of what Miller actually held. To make Miller retroactive under the Teague rule, Montgomery had to pound a round (procedural) peg into a square (substantive) hole. I don't think they want to publicly admit that the Court did that only a few years ago, but the difficulties are becoming apparent.

I'm sure Justice Kagan would like the Court to just accept Montgomery's recasting of Miller on its face and endorse an intrusive rule for federal micromanagement of juvenile LWOP sentencing, just like the monstrosity we have for capital sentencing. I would be surprised if she has a majority for that. I think Justice Alito (and probably Justice Thomas) would like to overrule Montgomery. I doubt they have a majority for that. Justice Gorsuch seems inclined to a narrow reading of Montgomery, though, because a broad one would implicate the Apprendi rule.

Justices Ginsburg and Breyer question the Virginia Supreme Court's holding that the Virginia system actually was discretionary at the time of Malvo's sentencing. The Fourth Circuit assumed that was correct. They could send the case back to reconsider that point.

With this many splits among the Justices, there is no predicting the outcome.

Amy Howe's report of the argument is here.

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