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July 22, 2005

Speculating about Judge Roberts' view on criminal law issues

This interesting article from Knight Ridder Newspapers explores Supreme Court nominee John Roberts limited paper record and statements on criminal law matters.  (My recent posts exploring how a Justice Roberts might impact the Supreme Court's criminal sentencing jurisprudence are all linked here.)   Notably, in the article, Berkeley Professor John Yoo, who worked at DOJ during President Bush's first term, is quoted as saying he suspects that Roberts "would not have agreed with" the opinion in Booker:

That, Yoo said, is because Roberts believes that it's up to Congress is make the laws, and it was Congress that established the mandatory guidelines. "Roberts is someone who thinks courts should not get involved in second-guessing decisions by elected officials," said Yoo.

It is hard to know exactly what to make of this opaque comment, especially given the dual opinions in Booker and the fact that Professor Yoo would likely say that Chief Justice Rehnquist and Justices Scalia and Thomas also think "courts should not get involved in second-guessing decisions by elected officials."  The comment also provides little clue as to how a Justice Roberts might vote on the many post-Blakely and post-Booker sentencing issues that will likely come before the High Court in coming terms, although it does reinforce my speculation 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.

July 22, 2005 at 08:28 AM | Permalink


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Tracked on Sep 14, 2009 1:02:28 PM


The quote doesn't help us. But you're right that he's a "Bush I/Rehnquist" conservative rather than a "Bush II/Scalia" conservative. So he would likely not extend Booker to overturn Almendarez and Harris.

Posted by: Robert Little | Jul 22, 2005 4:17:27 PM

I my doubts about robert

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