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May 9, 2006

What do Justices Alito and Roberts think about bright lines?

The top-side SCOTUS briefs in Cunningham, the California Blakely case (which are available here), are both fascinating and very different reads.  In a future post, I plan to discuss the briefs in more detail.  But my first reaction is that Cunningham sets up a great test of whether the Roberts Court is going to define and develop the Apprendi-Blakely rule as a bright line.

I have discussed these issues before in this post last year entitled "Does Blakely draw a bright line? What is that line?".  As noted in that post, though Justice Scalia in Blakely called the rule in Apprendi a "bright line," the New Mexico Supreme Court's Blakely ruling (basics here) asserted that the Apprendi-Blakely-Booker line of cases "ought not be viewed as drawing a bright line," and the California Supreme Court's ruling on Blakely (basics here, commentary here and here) likewise asserts that the "high court's precedents do not draw a bright line."

Clearly, the Booker remedy helped obscured whatever bright line Blakely may have aspired to create.  (Moreover, as I detail in my Reconceptualizing Sentencing article, the Supreme Court's sentencing jurisprudence was conceptually muddled even before Blakely and Booker came along.  Writing in a similar vein in his Columbia Law Review article, Kevin Reitz describes the Supreme Court's Sixth Amendment jurisprudence as "constitutional Swiss cheese.") 

Consequently, the fundamental question as we approach Cunningham is whether the new Roberts' Court will want to clarify that Blakely does draw a bright line or instead now will suggest Blakely can and should be applied by states in a more nuanced way.  Not surprisingly, both top-side briefs in Cunningham assert and stress that the Apprendi-Blakely rule draws a bright line.  I suspect the briefs on the other side will be fighting this notion.  And the future of Blakely — not just in California, but throughout the nation — may turn ultimately on what Justices Alito and Roberts think about bright-line rules in this context.

May 9, 2006 at 09:39 AM | Permalink

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