« "U.S. can't justify its drug war spending, reports say" | Main | "Ohio man gets 13 years in abortion-gunpoint case" »

June 9, 2011

If nothing else, ACCA merits credit for creating interesting coalitions of Justices

As noted in this prior post, in today's Sykesruling, Justice Scalia in dissent takes some justified swipes at the Armed Career Criminal Act and the SCOTUS jurisprudence it has recently spawned.  Justice Alito made some similar points in a prior ACCA opinion, and I do not think anyone can be truly pleased or satisfied by the practical realities of modern ACCA jurisprudence.  But, as suggested in the title of this post, ACCA merits a little love from SCOTUS watchers for its ability to generate distinct (and telling?) coalitions of Justices. 

Today's Sykes ruling, in particular, has lots of notable SCOTUS personnel stories.  Consider first the opinion for the Court authored by Justice Kennedy which is joined by Chief Justice Roberts and Justices Alito, Breyer and Sotomayor.  I cannot think of any other cases in which this particular fivesome came together on an distinct opinion.  Then we get a concurrence by Justice Thomas, which I find more appealing than even the Court's opinion, and yet he has no fellow-travelers.  Then there is the Scalia dissent, which is also quite appealling, but also gets no other votes.  Finally, Justice Kagan has penned her own (first criminal justice) dissent, and manages to have Justice Ginsburg along for the ride.

Lots could and should be said about this break-down, but two particular highlights seem especially worth emphasis: (1) among the two new Obama appointees, Justice Kagan may over time prove to be even more skeptical of prosecutorial claims than (former state prosecutor) Justice Sotomayor, (2) among all the current justices, Justice Scalia may be most willing and eager to assail the work of Congress and his fellow Justices on a range of federal criminal law issues.

Some related recent and older posts on Sykes and the Justices' sentencing work:

UPDATE: John Thacker in the comments astutely notes that this gang of five came together in Michigan v. Bryant, the recent Confrontation Clause case, and he further expresses concern that "we may have a new 5 member 'law and order' 'pragmatist' majority, to overturn Ring, Blakely, Booker, Arizona v. Gant, Melendez-Diaz, most of which were Scalia, Thomas, Ginsburg, Souter, Stevens."

I think John's concerns are a bit premature in some respects, as Chief Justice Roberts has had a pro-defendant voting history in the Apprendi-Blakely recent cases as evidenced by his votes in Cunningham and Ice.  I also suspect stare decisis realities may prevent this "law and order pragmatist" gang of five from actually overturning many (or any) of the recent pro-defendant constitutional rulings.   But it is probably still appropriate at this moment to suggest that, at least in some settings, the replacement of Justices Souter and Stevens with Justices Kagan and Sotomayor may have made the overall Court a bit more pro-government in criminal justice cases.

June 9, 2011 at 02:06 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e201538f12f4e9970b

Listed below are links to weblogs that reference If nothing else, ACCA merits credit for creating interesting coalitions of Justices:

Comments

Same majority as Michigan v. Bryant, the recent Confrontation Clause case.

Looks like we may have a new 5 member "law and order" "pragmatist" majority, to overturn Ring, Blakely, Booker, Arizona v. Gant, Melendez-Diaz, most of which were Scalia, Thomas, Ginsburg, Souter, Stevens.

If so, Sotomayor will have fulfilled my worst fears.

Posted by: John Thacker | Jun 9, 2011 2:57:37 PM

Michigan v. Bryant even had a Justice Thomas concurrence in the judgment, not joining the majority, too.

Posted by: John Thacker | Jun 9, 2011 3:05:52 PM

It's not Kagan's first dissenting opinion. That was in Arizona Christian School Tuition Organization v. Winn, the tax credit/religion clause case.

Posted by: Anon | Jun 9, 2011 3:49:04 PM

Thanks John and Anon for quick info/feedback. I have updated and tweaked the post accordingly.

Posted by: Doug B. | Jun 9, 2011 3:56:41 PM

I particularly appreciate Scalia's opening-paragraph zinger: "We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports."

Posted by: Garrett Wollman | Jun 9, 2011 10:08:49 PM

My concerns are not premature. We have Halloween costumed, buffoons and incompetents on the Supreme Court setting criminal law policy. These lawyers know nothing about nothing save one thing, lawyer rent seeking. Yet these incompetents are setting policy in ghoulish social human experimentation. Their decisions have the logic of the oblivious 2 year old throwing thing things around the room for no particular reason.

The result? Millions of major crimes a year, with 90% going unanswered. These criminals have knocked off several points off our economic growth, off the value of real estate, off the value of inner city education, since no one can learn while these lawyer protected criminals terrorize our schools. When these lawyer incompetents have a guy, there is a high chance, they have the wrong guy.

Posted by: Supremacy Claus | Jun 10, 2011 12:21:51 AM

My concerns are not premature. We have Halloween costumed, buffoons and incompetents on the Supreme Court setting criminal law policy. These lawyers know nothing about nothing save one thing, lawyer rent seeking. Yet these incompetents are setting policy in ghoulish social human experimentation. Their decisions have the logic of the oblivious 2 year old throwing thing things around the room for no particular reason.

Posted by: wholesale nfl jerseys | Jun 10, 2011 3:22:01 AM

"If so, Sotomayor will have fulfilled my worst fears."

Didn't "overturn" anything and even if you think they did, they didn't overturn all those cases; and perhaps we could have had a person who voted for Scalia or Thomas on those cases, but against defendants in others. I'm sure defendants would appreciate that, if they are the right kind.

Posted by: Joe | Jun 10, 2011 8:59:44 PM

Totoya waters have enough fish to sustain both the vitality of the ecosystem and sustenance for the people, but opening up the reefs allows foreign trade that could in time deplete its resources.

Posted by: Herve Leger on sale | Jul 14, 2011 3:12:17 AM

I love, and this article written by good, have lamented the beautiful writing

Posted by: Babe Ruth Jersey | Jul 27, 2011 5:29:45 AM

Who has the veteran NFL writer Vito Stellino of the Florida Times-Union reminisces. When Stellino covered the Pittsburgh Steelers, requested a phone conversation with Joe Namath to discuss their roots in western Pennsylvania

Posted by: Jason Pierre-Paul Jersey | Sep 1, 2012 4:38:44 AM

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