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October 15, 2008

Two very different takes on Ice

Two top-notch court watchers have two very different perspectives on what yesterday's oral argument in Oregon v. Ice might mean for the future of the Apprendi/Blakely line of Sixth Amendment cases.  Lyle Denniston, in this long post at SCOTUSblog, starts his summary of the Ice argument this way:

With Justice Stephen G. Breyer waging, seemingly alone, a rear-guard effort to limit juries' fact-finding role in determining criminal sentences, the Supreme Court on Tuesday displayed a strong inclination to stay on course in the eight-year effort to add to the jury’s power.

In sharp contrast, Kent Scheidegger, in this long post at Crime and Consequences, ends his post with this radically different assessment:

This looks pretty good for the state.  Justices Stevens and Ginsburg, both essential votes for the extension of Apprendi in Booker, seem to be reluctant to extend it this far.

My first read of the Ice transcript led me toward Lyle's assessment, but I have long given up making serious predictions about anything concerning what the Justices are going to be doing in the Apprendi/Blakely line of constitutional rulings.  However, the fact that the traditional left/right divide does not hold in this Sixth Amendment setting perhaps explains why the Court's efforts even at oral argument are hard to assess (and also explain why I find this jurisprudence so interesting).

Some related Ice posts:

October 15, 2008 at 02:43 PM | Permalink


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I agree with Doug and Lyle and don't see any indication of anyone other than Breyer continuing to resist Apprendi. Ginsburg may be bothered by how strange the statute is and concerned that some confusing law may come out of the case. I think Stevens is going to find harmless error, so in that sense it looks good for the State.

Posted by: | Oct 15, 2008 10:07:38 PM

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