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July 20, 2005

More great SCOTUS insight from Stuntz

Over at The New Republic Online, Professor Bill Stuntz has followed up his great commentary about the Supreme Court's role in the criminal justice system (which I discussed here) with another great commentary about Judge John Roberts.  In this new commentary, Stuntz echoes the point I made in this post that President Bush may have actually nominated a Justice more in the mold of Chief Justice Rehnquist than in the mold of Justices Scalia or Thomas.  Stuntz expresses concern that this fact might mean that Justice Roberts could be unduly concerned with results rather than reasoning, and thus tempted "to vote [his] instincts and tell [his] law clerks to come up with the rationales."

For reasons eloquently developed in this terrifically interesting post last year by Ken Lammers at CrimLaw (which I discussed here), a Justice focused on results rather than reasoning is particularly disconcerting in the universe of criminal justice jurisprudence.  As Ken has explained, in the criminal justice arena, a concern with results usually means that "every judge is a judicial activist when it comes to upholding the conviction of a 'criminal' or defending the processes of the criminal justice system." 

If indeed Roberts has more of a Rehnquistian concern for results than Scaliaesque concern for reasons, I would not expect O'Connor's replacement to significantly shift the on-going (tortured) development of the Almendarez-Torres--Apprendi--Harris--Blakely--Booker line of cases.  But then again, if Roberts is in fact personally opposed to the death penalty, perhaps his development of a results-oriented jurisprudence could really shake up the constitutionality of capital punishment and death sentencing procedures.

July 20, 2005 at 03:22 PM | Permalink


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