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September 2, 2004

Swing(ing) Justices?

I have a lot more to say about all the Booker and Fanfan briefs filed yesterday (available here and here), but a thoughtful reader suggested an interesting idea/question to keep in mind when reading (or re-reading) the SG's brief. The idea/question is: "Who is the government attempting to peel off from the Blakely majority?"

As I have been repeatedly saying to the students in my sentencing seminar, there is an interesting history and story connected to each of the nine Justices in the whole Apprendi/Blakely line of cases. Because of their forceful opinions in a number of cases, it seems unlikely either Justice Stevens or Thomas is likely to shrink from applying Blakely to the federal guidelines.

Some might say the same about Justice Scalia, though the thoughtful reader notes that given Justice Scalia's "break from the pack in Harris and his much-rumored initial dissent in Ring," Justice Scalia might "be looking for ways to cabin the pro-defendant effects of his brightline position." Since Justice Scalia was the swing (silent) vote in Harris, this speculation is sensible. However, I really think Justice Scalia would have written Blakely much differently if he wanted to save the federal system, and I also think he is much too smart to not have realized the seismic impact his broad Blakely language would have on the federal system.

Justices Ginsburg and Souter have said the least "on the record" in this line of cases, though Justice Ginsberg wrote the important Ring decision (which extended Apprendi to capital sentencing and reversed a recent precedent to do so) and Justice Souter wrote the important Jones decision (which first articulated the key language that became the Apprendi rule). In addition, both Justices signed on to Justice Thomas' forceful dissent in Harris.

Finally, I also think it is worthwhile to speculate about whether any of the Blakely dissenters might now "switch teams." My instinct is that Chief Justice Rehnquist and Justice O'Connor would be unlikely to ever play a role in the federal aftershocks of Blakely's "Number 10 earthquake." But Justices Kennedy and Breyer have such a dynamic history in expressing their views about both the doctrines and policies of federal sentencing (consider cases like Koon and the public speeches they've both made about problems with federal sentencing policies and practices). And Justices Kennedy and Breyer have both in cases like Ring and Harris said interesting things about the logic and reach of Apprendi.

Though Justices Kennedy and Breyer obviously did not want to extended Apprendi to guideline sentencing, now that the Blakely earthquake has happened, I think either or both might be more inclined to actively help with post-Blakely clean-up efforts rather than continue complaining about the ground shaking.

September 2, 2004 at 01:26 PM | Permalink


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In other words, Douglas, you're suggesting that Justice Breyer, might finally give up the ghost on the Guidelines, and, at long last, purchase his ticket for Apprendi-land. All aboard!

Stan Adelman
Adjunct Professor
U. of Arkansas School of Law

Posted by: Stan Adelman | Sep 2, 2004 5:38:14 PM

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