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July 4, 2004

Cass, have you read Blakely?

Professor Cass Sunstein, who's always a great read, has this op-ed in today's New York Times about the work of the Supreme Court this term. According to Professor Sunstein, "In the term just ended at the Supreme Court, minimalism emerged triumphant." He highlights that, in Newdow and Padilla, "the court refused to reach the merits," while in three other big cases "in which the court did reach the merits, it did so in the narrowest possible fashion."

And where does Blakely fit in? Not a word from Professor Sunstein on this case because it does not easily fit into his theory. Professor Sunstein says "minimalists favor narrow rulings; they seek a restrained judicial role." Well, "narrow" and "restrained" are not adjectives that describe Blakely. That said, he also asserts that minimalists have an "insistent focus on procedural safeguards," which might be a fair characterization of Blakely. But will Scalia like being called a minimalist any more than he'll like being called an activist?

Similarly, Linda Greenhouse's discussion of Blakely in her traditional end-of-term wrap-up is brief and understated. And many other Supreme Court wrap-up stories, like this one from the Chicago Sun-Times and this one in Indianapolis Star, do not even mention Blakely.

July 4, 2004 at 09:09 AM | Permalink

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Comments

It was the opposite this morning on National Public Radio's Sunday Edition, however. You could probably find and link to it through www.npr.org

Posted by: Peter G | Jul 4, 2004 2:20:38 PM

I've always taken the "minimalism" that Sunstein favors to be much more O'Connor's specialty than Scalia's--the one-case-at-a-time approach. Therefore, I find his use of minimalism highly deceptive, as it claims to pick out "restraint" on the part of the court, where what it really picks out, often, is the expansion of judicial power.

Hence O'Connor's line in Blakely, which could be (and is) in so many of her opinions (especially those disagreeing with Scalia), to the effect that she will always prefer a "balanced, case by case approach" to a "rigid rule". Notice that rules are rigid and opacity is "balanced." Note further that "balance" has the effect of always bringing questions back to the court--who never announce clear and predictive rules and therefore maintain more power in the long run.

Hence O'Connor's preference for formulations like "too far" in Blakely or "undue burden" in Casey. No guidance, just the assurance that in future we'll be treated to more "balance" from the great balancing justice. Sadly, at my law school, we don't have courses in "balance" so I'm just never sure how to interpret it.


Sunstein, therefore, praises a minimalism that is deceptively minimal, and restraint that is hardly restraining.

Posted by: Bill D. | Jul 6, 2004 1:58:28 PM

Note further that "balance" has the effect of always bringing questions back to the court--who never announce clear and predictive rules and therefore maintain more power in the long run.

Posted by: Robe de Cocktail Pas Cher | Dec 12, 2012 2:34:32 AM

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