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January 14, 2005

Eureka!! Tangible evidence of a flip-flop

As we all scratch our heads trying to figure out what Booker means, it seems appropriate to wonder what prompted Justice Ginsburg to "switch teams" on the right and remedy questions.  And, in a great discovery (which proves the value of reading even dissenters' footnotes very carefully), Jon Wool of the Vera Institute has discovered tangible evidence suggesting Justice Ginsburg at some point was prepared to stick with the Blakely five on the remedy question.

Let me reprint Jon's note to me in full, since his account of the story is very effective:

A Switch that Took Time?

One reason the Supreme Court took as long as it did to decide the time-sensitive Booker and Fanfan cases may be that a split occurred in a once-unified majority, creating a separate remedial majority. It is not uncommon for a majority opinion to become a dissent when one justice switches sides midstream. When this happens, the author of the former majority opinion must amend the opinion’s references to “the dissent” to read “the majority,” among other changes. It appears that Justice Stevens’s dissent on the remedial question missed one such amendment. In footnote 8 of that dissent, Justice Stevens comments on a prior case’s striking of an entire statute and contrasts that with the present Court’s approach. He refers to the present approach, however, “as the dissent would have us do,” rather than “as the majority now does.”  Both the use of the term “dissent,” when in fact he is the dissenter on this question, and the use of a subjunctive rather than perfect tense, strongly suggest that Stevens’s dissent once was a portion of a unified majority opinion. Which justice came to reject Justice Stevens’s remedial approach in favor of Justice Breyer’s? Justice Ginsburg is a good bet; she voted with the four dissenters in the substantive portion of the majority opinion, as she did in Apprendi and Blakely, and is the swing vote for the remedial majority.

Great work by Jon to be the first, to my knowledge, to spot this telling footnote typo in Justice Stevens's dissent.  I wonder if we might ever get some insider account of the in-chambers lobbying that must have taken place over Justice Ginsburg's vote.

January 14, 2005 at 05:53 AM | Permalink


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I don't think it was Ginsburg. Ginsubrg was for discretionary sentencing at oral argument. In response to a government explanation as to how discretionary sentencing might work at oral argument it was O'CONNOR who said "that just seems so contrary to what Congress intended." There's your culprit.

Posted by: R/W | Jan 14, 2005 9:47:40 AM

Nice catch. Why the switch by Ginsburg? Any speculation?

Posted by: Mark Osler | Jan 14, 2005 9:52:17 AM

R/W makes an excellent point. There's no evidence whatsoever that it was Ginsburg who flipped. She stands out as the only person in both majorities, but she could have held both of those positions all along. Kennedy is a notorious flip-flopper on the Court. O'Connor has also been known to do it. Sometimes a justice just changes his or her mind along the way. They're human, like the rest of us.

Posted by: Marc Shepherd | Jan 14, 2005 11:47:47 AM

Is there any chance Stevens was referring to Thomas's dissent?

Posted by: anon | Jan 14, 2005 12:55:54 PM

Another Stevens dissent typo (this one meaningless though): the second line of FN6 that starts "However..." is missing something between "hold that" and "a statute" (it should say something like "hold that with respect to a statute...").

Posted by: anon | Jan 14, 2005 3:15:11 PM

"Is there any chance Stevens was referring to Thomas's dissent?"

Almost zero chance of that. For the reasons that Will Baude says, but also because there were two other dissents (one by Scalia, and one by Thomas). Moreover, I have never seen one dissent refer to another dissent as "the dissent would have" --- as Jon said, the use of the tense is also important.

Posted by: Joe | Jan 14, 2005 4:09:39 PM

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