From Justice Alito’s angry dissent in the Supreme Court’s decision invalidating general and mandatory life sentences without parole for juvenile murderers:

Nothing in the Constitution supports this arrogation of legislative authority.

That’s right, Sam. We certainly don’t want to usurp legislative authority. Oh, no. So of course we would never dream of invalidating the Affordable Care Act, right? Right?

A couple of more serious comments:

1) Alito would no doubt answer that in the health care cases, the issue is whether the federal government has the authority in the first place. You can’t usurp authority from a government that doesn’t have it. But that was also the case with the issue of mandatory life-without-parole sentences for juveniles: if the Eighth Amendment applies, then the state government does not have the authority to impose those sentences. All of which is to say that “judicial activism,” the hobbyhorse that conservatives have used to complain about judicial decisions since Brown v. Board of Education (and yes — they vehemently complained about that one), is essentially a meaningless trope. For Alito to use it so casually shows that he’s almost as bad a judge as Scalia, which is going some.

2) Consider just how narrow the Court’s ruling was in this case. The Court very pointedly did not say that life-without-parole sentences for juveniles are unconstitutional: it said that imposing such sentences as a matter of course, legislatively determined, without any sort of individualized process, is unconstitutional. All of the murderers that Alito discusses in his opinion can be locked up for the rest of their lives. They just need to have someone actually determine that they individually merit such a sentence. This prospect is so offensive to Alito that he decided to read his dissent from the bench. Cutting 30 million people off of health insurance, however, is just a day at the office.

[Cross-posted at The Reality-based Community]

Jonathan Zasloff

Jonathan Zasloff is a professor of law at the University of California, Los Angeles.