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September 5, 2005

Pondering a (cert.) pool with much splashing about

Because there are so many post-Blakely and post-Booker questions that I think merit the Supreme Court's immediate attention, I have focused considerable attention on what the Supreme Court decides to decide.  Consider, for example, my kvetching again and again about the Court's grants of cert. in so many death penalty cases, and my recent reflections on the Supreme Court's likely next foray into the Blakely/Booker thicket.  And, in conjunction with Judge Roberts' initial nomination, I speculated in this post whether a Justice Roberts' might change the Court's agenda even more than its jurisprudence.

For a number of reasons, I think the cert. plot thickens with the prospect of a Chief Justice Roberts.  First, as David Franklin details in this fascinating post at Supreme Court Extra, the greatest impact of a Chief Justice Roberts could be through efforts to expand the Supreme Court's caseload and to reform the operation of the cert. pool.  Though such changes in the Court's operation will not garner great media attention, they could profoundly impact the Court's docket and its importance in many areas of the law.

Second, if Justice O'Connor now stays on the Court until a new nominee is named and confirmed, the cert. dynamics for this coming Term could be impacted.  The folks over at SCOTUSblog rightly note in posts here and here that, even if she continues to serve, it is unlikely Justice O'Connor would have an opportunity to cast decisive swing votes on the merits of big cases before her successor is named and confirmed.  But, over the next few months, the Supreme Court will be making cert. decisions to fill out its docket for the October 2005 term.  If Justice O'Connor sticks around, she certainly could be in a position to cast decisive swing votes on which cases the Court will take (although perhaps, as a lame duck Justice, she might try to avoid swing cert. votes).

I am focused on these cert. dynamics because I hope the Supreme Court will soon start taking up the many post-Blakely and post-Booker questions that need to be addressed.  In addition, in light of the current Supreme Court "head-count" on key cases in the Apprendi-Blakely-Booker line (as detailed here), sentencing jurisprudence could experience some major immediate course changes if cases like Almendarez-Torres and Harris are soon brought up for re-examination.

September 5, 2005 at 02:26 PM | Permalink

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