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Did the Chief initially have (but then lose) Justice Alito's vote in Graham?

By Douglas A. Berman

As my prior posts highlight, I am intrigued and taken by many aspects of the substance of Chief Justice Roberts' concurrence in the Graham Eighth Amendment case.  But, in re-reading this opinion today, I was also intrigued and taken by a surprising pronoun in this paragraph from page 6 of the Chief's opinion: JUSTICE THOMAS disagrees with even our limited reliance on Roper on the ground that the present case does not involve capital punishment.  Post, at 26 (dissenting opinion). That distinction is important ? indeed, it underlies our rejection of the categorical rule declared by the Court.  But Roper?s conclusion that juveniles are typically less culpable than adults has pertinence beyond capital cases, and rightly informs the case-specific inquiry I believe to be appropriate here...continue to full post

Full post as published by Sentencing Law and Policy on May 19, 2010 (boomark / email).