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July 7, 2005

CJ Rehnquist out, too? Whither (or wither) Harris, Almendarez-Torres (and Booker)?

You can go to just about any law blog tonight — TalkLeft, SCONo, Volokh, UTR — and read up on rumors that Chief Justice William Rehnquist will announce his retirement on Friday.  Of course, if the rumors prove true, the press and the blogsphere will take SCOTUS-mania to an even higher height (and there will surely be lots of "life imitates art" discussion of a certain West Wing episode).

Playing my little role in all the buzz and punditry, let me reiterate points I have made previously about what a new Justice could mean for sentencing jurisprudence.  The Chief, like Justice O'Connor, served as a key fifth vote in the 5-4 decisions that produced the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule.  If (when?) President Bush nominates replacement Justices in the "Scalia-Thomas" mold, the fate of Almendarez-Torres and Harris becomes even more uncertain.

And on a day when the 7th Circuit has expounded on post-Booker sentencing and appellate review for reasonableness (basics here), it also seems useful to recall that both Justice O'Connor and Chief Justice Rehnquist were key votes enabling Justice Breyer to craft the advisory guideline remedy in Booker.  Consequently, it seems likely that the new Justice(s) could play a pivotal role in further development of what that Booker remedy really means when the High Court takes up follow-up federal sentencing cases in the terms ahead.

July 7, 2005 at 10:49 PM | Permalink


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The Apprendi line of cases have been decided by shifting majorities that defy the traditional labels of "liberal" or "conservative." That President Bush will appoint a conservative jurist is a given, but it could as easily be someone in the Rehnquist mold as in the Scalia mold.

Although the President has said he doesn't have a litmus test, Rehnquist's jurisprudence on sentencing issues is probably a lot closer to the Administration's desired outcome than Scalia's. No Justice has been more reliably conservative in "law-and-order" cases than Rehnquist.

That said, I doubt that sentencing issues are in the President's laser sights as he makes this appointment, so if the new justice joins the Apprendi majority, it will be by luck, not by design.

Posted by: Marc Shepherd | Jul 8, 2005 8:48:06 AM

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