June 19, 2007
A coming reasonableness clusterf#@k? Ruminations while waiting for Rita
SCOTUS guru Tom Goldstein is now predicting here that Justice Alito is writing the opinion for the Court in Rita, after having previously predicted that Justice Stevens and then that Justice Breyer was in charge of Rita. I think all of Tom's predictions may be right because, as I wait impatiently for a ruling on reasonableness from the Court, I am now thinking we could get many opinions in Rita. Let me detail my latest (wholly speculative) ruminations on Rita:
1. The Sixth Amendment's impact: Given the Court's recent ruling in Cunningham and the affinity shown by Justices Stevens, Scalia and Thomas for the Sixth Amendment jury trial right, there likely will be at least one Rita opinion stressing the impact and import of the Sixth Amendment in post-Booker sentencing.
2. The SRA's impact: Given the remedial opinion in Booker and the Court's unanimous work a decade ago in Koon, there likely will be at least one Rita opinion stressing the impact and import of the statutory provisions of the Sentencing Reform Act (and especially 3553(a)) in post-Booker sentencing.
3. The USSC's impact: Given the remedial opinion in Booker and also the the affinity shown by Justices Breyer and Alito for the US Sentencing Commission, there likely will be at least one Rita opinion stressing the impact and import of the guidelines in post-Booker sentencing.
Perhaps one impressively comprehensive opinion for the Court can cover all this ground. But the disaffinity of Justices Kennedy and Breyer for the Sixth Amendment jury trial right suggests they won't join an opinion praising Blakely's view of jury trial rights. And the apparent disaffinity of Justice Scalia for the USSC (and for Justice Breyer?) suggests he won't join an opinion praising the guidelines.
Throw into this mix the two new Justices — whose contrasting votes in Cunningham suggest they look at these issues and the Court's recent sentencing jurisprudence quite differently — and we could have a real mess on our hands with perhaps multiple plurality opinions in Rita.
Indeed, the Court's cert grants in two new sentencing cases set for argument next term perhaps makes the most sense if the Justices have been struggling with a messy set of opinions in Rita. Perhaps the Justices realize that their work in Rita will raise as many questions as it answers, and thus they want and will need another big bite at the post-Booker sentencing apple to provide guidance to lower courts still trying to sort through the post-Booker world.
Some recent related posts:
- Could the Libby case be impacting the Justices' views and work on Rita?
- SCOTUS scratches my sentencing itch, but also has me scratching my head
- Thinking through Kimbrough and the state of crack sentencing
- Talk about having Gall
- Reasonableness review revisions (and revolutions?)
- Rita reasonableness case archive
June 19, 2007 at 11:50 AM | Permalink
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We've already had one "schizophrenic" opinion in Booker - guess Rita will really clear things up...
Posted by: te | Jun 20, 2007 4:43:12 PM