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December 18, 2004

Blakely gets no respect

Album_no_respect I am starting to think of Blakely v. Washington as the Rodney Dangerfield of Supreme Court decisions: it gets no respect.  I noted in this post in July that law professor Cass Sunstein failed to mention Blakely in his review of the 2003-04 Supreme Court term (a term which Professor Sunstein characterized as marked by "minimalism" through "narrow" and "restrained" rulings).  In that post, I also noted that Blakely got little or no mention in other term-in-review stories.

Now, thanks to this post at How Appealing, I see that Blakely is also getting overlooked by law professor David J. Garrow in this article forthcoming in American History Magazine.  Though Professor Garrow's article is principally about the history of 20th century Supreme Court appointments, at the tail end of the piece he asserts that no moments of "moral invocation ... took place during the court's 2003-04 term."  He also suggests the 2003-04 term was marked by an "unusual outbreak of judicial meekness."   

But I have a hard time reading Justice Scalia's opinion for the Court in Blakely — especially statements such as "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment" — as anything but a profound moral invocation.  And if Blakely is a meek decision, I would hate to see what happens after a spirited ruling.  Indeed, based on all I have seen and reported upon in the last six months, I continue to stand by my assertion here that Blakely may be the biggest criminal justice decision not just of the Rehnquist Court, but perhaps in the modern history of the Supreme Court.

December 18, 2004 at 08:15 PM | Permalink


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Huh. That's a weird consensus to have developed. It really must depend on where you sit. Texas' state system was 'clean' regarding Blakeley, so the impact hasn't been as earth-shaking here, but even so I'd say the Court's now-habitual bench-slapping of the Texas justice system (and by extension, the 5th Cirucuit) hasn't been too "meek," either.

Sometimes I think folks have become so enamored of the grand spectacle that, when there's not one, they think there's no 'news.' There's a difference between Daingerfield and Blakeley, though: In the end, Blakeley will DEMAND respect.

Posted by: Scott | Dec 19, 2004 9:11:48 AM

Jeffrey Fisher's other Supreme Court win this term, Crawford v. Washington, can't exactly be described as "meek" or "restrained" either.

Posted by: Andrew Fine | Dec 20, 2004 10:21:17 AM

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