« Some post-Booker SCOTUS doings from a per curiam and a dissent | Main | Yale LJ Pocket Part piece on Kennedy rehearing denial »

October 14, 2008

Ice oral argument transcript now available

I have not yet had a chance to review the Ice oral argument transcript, but it is now available at this link.  As explained in this preview post, the Ice case has the potential to heat up or cool down lower court debates over the reach of Blakely and the limits of judicial fact-finding at sentencing.

I plan to post later on anything really significant that jumps out from the oral argument transcript.  In the meantime, readers are encouraged to use the comments to give their views on whether the Ice argument proved to be hot or cold.

UPDATE:  After a quick read of the transcript, I was surprised and somewhat disappointed that the jurisprudential discussion of Apprendi and Blakely has not become more advanced and sophisticated even a full decade into this modern Sixth Amendment debate. That said, I was surprised and somewhat pleased to see pro-Sixth Amendment instincts expressed by nearly every member of the Cunningham six during the Ice argument (though Justice Thomas remained his usual quiet self).

For a variety of reasons, I have been fearful that the six Justices who continued to champion Sixth Amendment principles in the Cunningham decision dealing with California's sentencing system (who are the five Justices in the Apprendi/Blakely majorities plus Chief Justice Roberts) are not eager to keep the modern Sixth Amendment sentencing revolution marching forward.  But the transcript of the Ice argument suggested to me that Justice Breyer, who has always opposed the Apprendi/Blakely line of cases, may be the only Justice deeply and seriously concerned about the possible consequences of continued commitment to the principles of this line of cases. 

I had expected that Justices Alito and Kennedy, who were part of the dissenting block in Cunningham, would be vocal in articulating concerns about the arguments put forward by the defendant in Ice.  But Justice Alito was surprisingly quiet during argument — I do not think he asked a single question — and Justice Kennedy did not reveal any deep continuing hostility to Apprendi principles.  I am now starting to wonder if every member of the current Court, save Justice Breyer, is ready to have their ticket stamped to Apprendi-land.  If so, and especially if Ice ruling ends up reflecting this new reality in bold terms, it could end up being a sleeper case this Term.

October 14, 2008 at 05:44 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Ice oral argument transcript now available:


I have not read even half of the transcript, but the first few pages skew quite favorably in Mr. Ice's favor.

Posted by: Ryan S | Oct 14, 2008 6:34:28 PM

I have not read even half of the transcript, but the first few pages skew quite favorably in Mr. Ice's favor.

Posted by: Ryan S | Oct 14, 2008 6:34:41 PM

I think the state wins, possibly by a lopsided margin. There are implications that Justices Stevens and Ginsburg have both decided they have traveled far enough into Apprendi-land and want to get off.

Posted by: Kent Scheidegger | Oct 14, 2008 6:50:11 PM

Didn't ginsburg get off the train in booker?

Posted by: Anon | Oct 14, 2008 8:30:52 PM

Some thoughts on Ice:

1. Justice Ginsburg captures the essence of the case when, on page 24, she describes the statute as a "very disturbing enigma." Scalia also, on page 4 says no other state has such a statute.

2. Nobody has gotten off the Apprendi train and the count still stands six and a half for Apprendi. Stevens, Scalia, Thomas, Souter, Ginsburg, Roberts and Kennedy sometimes.

3. Prediction- 6 to 3 majority decides there is a Sixth amendment violation due to the enigmatic peculiarity of the statute, making the opinion very case specific. Ice loses on harmless error under Recuenco.

bruce cunningham

Posted by: | Oct 15, 2008 12:46:12 AM

This should be at least a 5-4 decision in favor of a constitutional violation, but I'm a little worried about Stevens and Ginsburg. I shouldn't be, because this is only the natural application of Apprendi, but Ginsburg has demonstrated a tendency to stray from what is logical and natural. (And with Stevens, you never know...) It's very frustrating that someone as intelligent as a SCOTUS justice wouldn't have considered the future when deciding a landmark case. You either get on the train and ride it or you stay off. Ginsburg seems to want to pull the emergency brake in a remote area for no reason other than possibly having second thoughts. Pretty pathetic.

Posted by: S | Oct 15, 2008 2:15:51 AM

Having attended the argument yesterday afternoon, I can tell you that Alito didn't ask any questions during respondent's argument because he (and Thomas) were sound asleep.

Posted by: Kevin Lomax | Oct 15, 2008 9:46:57 AM

Doug, I agree with you that the Blakely five plus Roberts are still on board and Justice Kennedy has one foot on the train. His "not a happenstance" comment I think is indicative that he is not resistant to Apprendi as well established law and has accepted it, albeit reluctantly.

bruce cunningham

Posted by: | Oct 15, 2008 1:00:02 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB