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August 3, 2004

How the Blakely saga would get resolved in Hollywood

Because of how complicated and messy the post-Blakely world has become, I think it will be very difficult for the Supreme Court to resolve all (or even most) of the on-going sentencing controversies through just the Fanfan and Booker cases. It is more than thirty years since the Supreme Court radically disrupted capital sentencing procedures in Furman v. Georgia, and we are still trying to work out all the kinks of that ruling. (If you are interested in the parallels, a few years ago I compared Apprendi to Furman in Appreciating Apprendi: Developing Sentencing Procedures in the Shadow of the Constitution, 37 Criminal Law Bulletin 627 (2001).)

In other words, I expect that it will take many years and many decision from the Supreme Court in Washington DC to resolve the on-going Blakely saga. But late last night it dawned on me that the folks on the other coast in Hollywood would likely have a much easier way to deal with all this:

CREDITS: Opening scene from the new fall show SCOTUS, brought to you by the same writing staff that gave the world Season Eight of Dallas:

Cut to a scene of Justice O'Connor waking up at her desk after working late into the night on an important opinion. She starts wandering around the corridors of the Supreme Court and discovers that everyone has gone home for the night. She then hears the sound of running water coming from Justice Scalia's chambers.

Justice O'Connor wanders in to Justice Scalia's chambers to discover Justice Scalia in a bathrobe apparently fresh from a shower. Justice Scalia casually replies, "Sandy, I'm glad you are still here. You will be pleased to know I finally gave up trying to write an opinion for the Court in Blakely. We both know in my heart I am a formalist, but I'd ultimately rather be called a pragmatist than an activist. Thus, I have decided to vote with you on the Blakely case. Indeed, I can't believe I was seriously considering extending Apprendi to guideline cases. What a mess that would create."

Stunned by what she is hearing, Justice O'Connor looks to a day calender on a nearby desk and discovers the date is June 23, 2004!! Slowly getting her bearings, she comes to realize that the ruling she feared in Blakely, and the Number 10 earthquake it set off in federal and state courts, was all just a bad dream.

August 3, 2004 at 11:03 AM | Permalink


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I love it!!! Just like Dallas!

And the first paragraph shows the problems with the ND Indiana U.S. Attorney's move to pause sentencing in the ND of Indiana.

Posted by: Marcia Oddi | Aug 3, 2004 11:10:16 AM

Oddly, a couple of weeks ago, I also thought about the "Dallas" dream-sequence in connection with the Blakely situation. In my version, however, the Court merely distinguishes Blakely, restoring the pre-Blakely approach to federal guidelines sentencing. Not quite as clean as the "it was all a dream" approach, as there would be several months' worth of Blakely-influenced sentences for the lower courts to address, but future guidelines sentencing actors would look at the summer and early fall of 2004 as a strange dream.

In thinking about this, I wondered whether the current chaos would make the court less likely, rather than more likely, to decline to extend Blakely to the federal guidelines scheme, given the natural reluctance to say "we didn't really mean it" after creating all this angst. (This assumes that distinguishing Blakely is even a viable option doctrinally -- aside from Judge Easterbrook and the Fifth Circuit Pineiro panel, few seem to think this is an appropriate reading of Blakely).

It's a bit frightening that the current sentencing situation brought to mind the plot line of an 80's prime time soap (pop culture run amok!), but I suppose it could have been worse -- at least we didn't dredge up scenes from Falcon Crest.

Posted by: Barry L. Johnson | Aug 3, 2004 1:49:54 PM

I wondered whether the current chaos would make the court less likely

Posted by: Robe de Soirée 2013 | Dec 14, 2012 1:44:40 AM

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