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June 29, 2007

Criminal sentencing and the Roberts Court after OT '06

After this week's large batch of divided and very partisan rulings from the Supreme Court, the big end of Term themes focus on (1) the Court's turn to the right (see this ACLU press release), and (2) the centrality of Justice Kennedy's views on the Court's rulings (see this SCOTUSblog commentary).   For folks interesting primarily in criminal sentencing issues, these general themes have some interesting and counter-intuitive particulars:

Capital Punishment: As the Panetti decision documents and as Karl Keys effectively highlights here, Justice Kennedy is central to the Court's death penalty work.  Here's is Karl's spot-on assessment of where capital jurisprudence now stands after a Term of split capital rulings:

[T]he Court continues reigning in what Justice Kennedy perceives as the excesses of capital jurisprudence that he sees as out of the mainstream.  Put another way, Justice Kennedy appears to be proposing a "Goldilocks standard" for capital jurisprudence — not too hot (Texas & the Fifth Circuit), not too cold (a certain unnamed west coast circuit), but somewhere in between.  What the next Term holds remains to be seen, but already some are foreseeing another scolding of the Texas Court of Criminal Appeals early next Term in Medellin v. Texas.

Non-Capital Sentencing: As the Rita and Cunningham rulings show, Justice Kennedy is not a dominant force in the Court's still evolving Sixth Amendment jurisprudence (Kennedy's only written dissent this Term was in Cunningham).  Moreover, the result in Cunningham and the dicta in Rita confirm my view that the Roberts Court, though hardly likely to be mistaken for the Warren Court, remains perhaps the most liberal appellate court in the country on non-capital sentencing issues.  Indeed, were it not for the evaporation of the Claiborne case and two purported liberals (Justices Souter and Breyer) preferring Justice Alito's views to Justice Scalia's view in James, this Term could have been a remarkable one for criminal defendants on non-capital sentencing issues.  And, with Kimbrough and Gall in the works for next Term, there is every reason to expect that the Supreme Court will continue to be most liberal appellate court in the country on non-capital sentencing issues in the coming years.

Looking to some broader criminal justice themes, it is also worthwhile and interesting to note that, outside the death penalty context, the Roberts court resolved more criminal justice issues by votes of 9-0 than 5-4.  Except in the high-profile (but low impact) capital punishment realm, this seemingly very divided Court is not all that divided on a variety of criminal justice issues.

June 29, 2007 at 08:21 AM | Permalink


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I thought this month's issue of New Republic with it's lead article titled "The Arrogance of Justice Kennedy" provided a great (albeit sad) insight into the mind of the justice who wants to decide what is the appropriate moral standards for everyone. It's fascinating how much the justices, conservative and liberal, distrust the American people. Dangerous as well.

Posted by: | Jun 29, 2007 12:40:07 PM

That article was eye-opening. Perhaps a bit unfair--but I think it undeniable that some of the expansive prose in Kennedy's opinions are emblematic of someone who enjoys a bit too much his role.

Posted by: federalist | Jul 1, 2007 8:30:03 PM

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