The Wieneke Law Office recently ventured into uncharted territory: our first attempt at an offer of friendship to the highest court in the land. Yes, we filed our first brief on behalf of amicus curiae before the Supreme Court of the United States, offering some guidance on the need for advocacy and adversarial proceedings when making the determination of whether a child deserves to spend the rest of his life behind bars. I like to think of our firm as frontline constitutional defenders, and this was right up our alley — the intersection of the Sixth and Eighth Amendments.
What happens now that we have extended the offer? That remains to be seen. I suppose it depends on a laundry list of factors: what issues are currently more important than the concept of forever for a child; is the process of dealing with children sufficiently gummed up that High Court intervention is warranted; and, at least some would say, it depends in part on the Supreme Court’s opinion of the advocate representing the Petitioner. I’ll reserve personal comment on that last consideration. But as constitutional defenders, it’s tough to accept the idea that justice depends in part on who you are.
The fantasy is that cert is granted, and a divided Court rules in our favor, with the swing vote of Kennedy borrowing a line from the amicus brief, making it clear that our offer of friendship was not only accepted but impactful. I suppose the odds of that happening are maybe 1 in 10,000, and I’m probably being a touch optimistic.
The fear is…REJECTION. Isn’t that the fear with any offer of friendship? The remnant of my middle school persona that persists deep inside imagines Kagan joking at conference about the incomprehensibility of the amicus brief, just before the Court votes 9-0 to deny the petition for cert.
With all that said, it was a great experience, and I believe we were able to advance some more-than-worthwhile arguments. A book I like to read explains that it’s not about how we treat the important people or the people that are easy to love; it is about how we treat the “least” in this world. And teenagers who have done something so bad that it warrants a consideration of whether we imprison them for life fall squarely into the category of the “least.” So the “least” we can do for these “least” is offer some words in favor of making the process of that determination as fair and considerate as it can be.