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November 9, 2004

Booker and Fanfan pre-reading guide

If Booker and Fanfan are decided today — and that is still a big "if" — there will be so many ways to examine and assess what the Supreme Court says (and does not say). Besides obviously being concerned with the basic holding and vote count, I will also be thinking about:

1. Who writes the majority opinion and any concurrences or dissents.

2. Whether the Court's opinion discusses constitutional provisions other than the Sixth Amendment and how the Court handles precedents like Watts and McMillan and Williams.

3. Whether the Court's opinion, directly or indirectly, speaks to the continued vitality after Blakely of recent key precedents like Almendarez-Torres and Harris (background on these issues can be found here).

4. Whether the Court's opinion, directly or indirectly, speaks to issues relating to Blakely's retroactivity.

5. Whether the Court's opinion, directly or indirectly, speaks to issues confounding state courts such as Blakely's applicability to consecutive sentencing determinations or the scope of the "prior conviction" exception (or the dozens of other smaller "Blakely scope" issues).

I could go on — there are also many questions about permissible remedies for current cases and advising other branches about how to handle future cases — but I am already exhausted just thinking through all the issues. What I fear most before seeing any opinion is the prospect of a deeply fractured Court creating uncertainty on even those issues it directly addresses. Here's hoping that, no matter what the Court says, it speaks with a relatively clear voice.

November 9, 2004 at 08:03 AM | Permalink


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1. 6-3, Ginsburg for the majority; Rehnquist, O'Connor, and Breyer dissenting. Until the guidelines system is fixed by legislation, sentencing provisions in the statutes of conviction will control sentencing (opening up some very ugly ex post facto problems).

Any dissenting opinion will be much more careful not to give the opposition the ammunition O'Connor's Blakely dissent provided the enemies of the Guidelines.

2. Can't escape due process and double jeopardy in the 5th. No explicit repudiation of any previous cases except Mistretta.

3. Concurrence by Scalia & Thomas saying that Almendarez-Torres is ripe for the picking.

4. Something about Blakely extending Apprendi and disavowing or down-playing the Blakely comment, "As our precedents make clear . . ." ==> Blakely won't be retroactive to Apprendi.

5. Nothing about consecutive sentencing; Booker & Fanfan sentences stay reversed and double jeopardy problem, as noted by Posner in Booker, with no resentencing. Hence also, nothing about the power to convene sentencing juries. Some dicta also limiting "fact of a prior conviction" to something like "the fact of a prior conviction."

I'm sure some of these wild guesses are inconsistent with one another. But that's what my hobgoblins have to say.

Posted by: Michael Ausbrook | Nov 9, 2004 10:33:47 AM

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