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August 16, 2005

Pondering the next SCOTUS Blakely/Booker case

The recent cert petitions in Blakely cases coming from California and from Tennessee have me thinking hard about exactly which case and exactly what issue will provide the setting for Supreme Court's next foray into the Blakely and Booker thickets.  Notably, my outline in this post of key post-Blakely and post-Booker questions that merit the Supreme Court's attention did not focus on various issues that many state systems are struggling through.  It is fun (but probably foolish) to speculate that the Supreme Court decided to pass on the issue of Booker plain error (basics here, commentary here and here) in order to save its time and energies for cleaning up some of the state Blakely mess it has made.

My SCOTUS pondering has both a descriptive and a normative component: I am wondering which Blakely/Booker case and issue the Supreme Court likely will take up next and also considering which Blakely/Booker case and issue the Supreme Court should take up next.  Ultimately, I still think the validity and scope of the "prior conviction" exception, which the Shepard decision further confused, is the most pressing and important issue needing to be resolved, but lately I am thinking that the High Court may find its way to taking up some other Blakely/Booker issues first.

Perhaps readers might use the comments, which have been fairly quite of late, either to make predictions about the next Blakely/Booker case and issue likely to come before the Supreme Court or to advocate a position concerning which Blakely/Booker case and issue the Supreme Court should take up next.

August 16, 2005 at 12:43 AM | Permalink


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» Blog Round-up - Tuesday, August 16th from SCOTUSblog
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Tracked on Aug 16, 2005 10:01:14 AM


2, 4, 6, 8,
Who do we appreciate?
Restitution, Restitution, Yay, Restitution!

Posted by: Brian Kleinhaus | Aug 16, 2005 4:08:35 PM

3s, 5s, 7s, 9s
at the same time they can deal with fines!

Posted by: Doug B. | Aug 16, 2005 4:47:54 PM

Three of the more pressing Booker-related issues that need to be resolved by the Supremes are (1) the viability of Watts and use of acquitted conduct; (2) the viability of Harris and the constitutionality of aggravated mandatory minimums such as those found in 924(c) and in federal drug offenses; and (3) retroactiviy.

Posted by: Carmen Hernandez | Aug 17, 2005 10:26:40 AM

I agree completely with your list, Carmen, though I fear that SCOTUS won't take up any of these issues this coming term, and won't have them all resolved until the end of this decade. I hope I am wrong in my pessimism about the Court's agenda.

Posted by: Doug B. | Aug 17, 2005 11:45:29 AM

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