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January 18, 2005

Silent switches

A few persons have written to urge additional commentary (by me and the media) on Justice Ginsburg's swing vote in Booker and the absence of a concurring opinion to defend her votes.  Of course, in this Eureka post, I did spotlight the evidence that Justice Stevens may have once had a majority for his Blakely-ization remedy and that Justice Ginsburg was the likely late-day flip-flopper.  And, in this potent LA Times commentary, Professor Alan Dershowitz had some particularly harsh words for Justice Ginsburg's failure to explain her votes.  Nevertheless, I generally agree that further commentary and speculation about the thinking behind, and possible battle over, Justice Ginburg's votes is justified.

But, critically, if we are going to examine silent switches, we perhaps should start with an earlier case which, at the time, seemed to spare the federal sentencing guidelines from the reach of Apprendi.  All close followers of the Apprendi line of decisions know that in Harris v. United States, 536 US 545 (2002), Justice Scalia broke ranks with the Apprendi/Blakely five in order to constitutionally approve judicial fact-finding for the enhancement of mandatory minimum sentences.  And Justice Scalia provided no explanation for his switch in Harris, even though Justice Breyer, who is never silent in these cases, said in his Harris concurrence that he could not easily distinguish Apprendi from Harris "in terms of logic."

January 18, 2005 at 04:48 PM | Permalink

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» Breyer's Ethics Ask from Law Dork
Although Prof. Douglas Berman has been all over the issues with Justice Ginsburg's "silent switch" that shook United States v. Booker, Tony Mauro has discovered that Justice Stephen Breyer sought advice on whether he should participate in the decision ... [Read More]

Tracked on Jan 18, 2005 10:55:09 PM

» Breyer's Ethics Ask from Law Dork
Although Prof. Douglas Berman has been all over the issues with Justice Ginsburg's "silent switch" that shook United States v. Booker, Tony Mauro has discovered that Justice Stephen Breyer sought advice on whether he should participate in the decision ... [Read More]

Tracked on Jan 18, 2005 10:57:33 PM

Comments

Certainly, further commentary and speculation about how to reconcile the two opinions is justified. It's not fair, however, to focus on Justice Ginsburg. The other four justices in the remedial majority also professed to believe that the two opinions were consistent. Whether they believed it is irrelevant. They signed on to it.

Posted by: AF | Jan 18, 2005 5:56:13 PM

I've never even been to the Supreme Court, much less worked there, so what do I know, but I think we might be making too much out of this footnote. I think a more logical explanation was that JPS was drafting an entire majority opinion -- merits and remedy -- knowing that he had only four votes for the remedy (JPS, RBG, AS, DS) (it's unclear to me whether CT would have voted for Stevens's remedy or wanted to invalidate the Guidelines as a whole based on his separate dissent). The "other side" had four strong votes for their remedy -- WR, SDO, AK, and SB. Helplessly deadlocked and realizing that they must have a majority for a remedy, and unable to get CT to go along with JPS's remedy, RBG decides that she can live with the other remedy just so that an opinion can come out. To me, this explains why (1) it took so long and (2) why RBG's flip-flop was not explained (because it was made for essentially pragmatic reasons). So then JPS's remedy becomes a dissent and the footnote doesn't get changed.

Perhaps it's just another wild theory, but one worth examining.

Posted by: District Clerk Battling Blakely | Jan 19, 2005 9:43:51 AM

I agree that Justice Stevens's dissent shows clear evidence that *somebody* flip-flopped. I don't see any evidence that Ginsburg is the one who did it. The remedy is a separate issue from the constitutionality of mandatory guidelines. Any of the four justices who joined Breyer's opinion could have been the one who flip-flopped on that question. It is unlikely to have been Rehnquist, but I wouldn't rule out Kennedy.

I also agree that the Dershowitz op-ed is unfair to Ginsburg. All five of the justices who agreed on remedy must have believed that their vote was consistent with the outcome of the case--even though four of them preferred a different outcome. I see no reason for Ginsburg to write separately if she believes Breyer has covered it to her satisfaction.

Posted by: Marc Shepherd | Jan 19, 2005 11:52:22 AM

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