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December 19, 2008

Seeking SCOTUS speculations during the Justices holiday break

Last year around this time, wehad the Supreme Court's then-fresh opinion in Gall and Kimbrough to keep us warm through long winter nights.  This year, though we have lots of new USSC data to unpack, the Justices failed to beat the holiday rush in resolving any of its sentencing sleeper cases from the Fall. 

Intriguingly, the Court managed to issue only two signed opinions before taking its holiday break this year.  As detailed here, the Justices did get out four per curiam opinion and the two cases with signed opinions involved a divided court.  But with only Chief Justice Roberts and Justice Stevens having authored signed opinions for the Court, it is difficult to even effectively speculate who might be writing the opinions in Oregon v. Ice, which deals with Blakely's applicability to consecutive sentencing determinations, and United States v. Hayes, which deal with the reach of the federal prohibition on certain misdemeanants possessing firearms and implicates Second Amendment issues.

Because Justice Scalia's opinions are always good for blogging business and because he was his usual active questioner in the oral arguments in Ice and Hayes, I am hoping he is spending the holiday break adding a final few constitutional flourishes to opinions for the Court in these cases.  Though I know Santa won't have the opinions in hand when making deliveries next week, I do think we could get both opinions in early January.  And, as of this writing, I think they may be worth the wait for sentencing fans.

Given that public SCOTUS activity is on ice until January 12, I would be grateful for readers keep me warm with speculations about Ice or about any other High Court cases they are following this Term.

December 19, 2008 at 09:45 AM | Permalink


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The opinion I am most anxiously awaiting is Chambers. It, IMO, has the most impact on federal sentencing practice, as the residual/"otherwise clause" of the ACCA and 4B1.2 (and all the other Guidelines that cross-reference 4B1.2, e.g. 2K1.3, 2K2.2) are most frequently responsible for significant sentencing increases.

As for a prediction, I think (and hope) "failure to report" escape will not be a violent felony. As for an X-mas wish list, I hope the clause is ruled unconstitutionally vague. Either way, the “otherwise clause” is impossible to apply in a principled manner, and James and Begay do little to help. See US v. West,--F.3d--, 2008 WL 5158599 (10th Cir. 2008) (stating that Begay does not call into question prior precedent that escape is a violent felony, but also explaining that the decision is not easily applied). See also US v. Charles, 566 F.Supp.2d 1229 (D. Kan. 2008) (“The application of the Begay decision is hardly a simple proposition.”). I hope Chambers helps resolve the confusion, or prohibits the application of the vague clause

Posted by: DEJ | Dec 19, 2008 3:02:47 PM

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