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September 12, 2005

Can Roberts bring consensus to SCOTUS sentencing jurisprudence?

One important theme in the on-going Senate hearings for nominee John Roberts (which are being live blogged here at SCOTUSblog) is whether a Chief Justice Roberts might be able to forge more consensus within a Court that seems fond of multi-opinion, fractured rulings.  Senate Judiciary Committee Chair Arlen Specter, in his prepared opening statement, has said, "The next chief justice will have the potential  ... to bring consensus to the court which has made a hallmark of 5-4 decisions, many of which are inexplicable."  Of course, though this description of SCOTUS rulings might include any number of recent decisions, Booker could well have been in the front of Specter's mind when so besmirching the Court's recent work.

As we think about what greater consensus might mean in the context of non-capital sentencing jurisprudence, we should be particularly mindful of the current SCOTUS sentencing head-count on Apprendi-Blakely issuesTo have less fractured rulings in this arena in the wake of recent Court transitions, a Chief Justice Roberts would first probably have to help Justices Breyer and Kennedy finally make a trip to Apprendi-land.  (Recall that Justice Scalia in his Ring concurrence essentially offered to buy Justice Breyer his ticket: "There is really no way in which Justice Breyer can travel with the happy band that reaches today's result unless he says yes to Apprendi.  Concisely put, Justice Breyer is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land.").

As we think about what greater consensus might mean in the context of capital sentencing jurisprudence, we should perhaps be mindful of the ways death (penalty jurisprudence) is different.  Even when there is a relative consensus on some issues (e.g., all the current Justices now seem to accept the basic constitutionality of the death penalty), cert. is likely to be granted only in capital cases raising issues that can be expected to fracture the current justices.

September 12, 2005 at 02:32 PM | Permalink


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Tracked on Sep 12, 2005 4:53:04 PM


Professor Berman,

With all respect, I believe you're not addressing the truly fundamental change in sentencing Roberts and the other new justice could create: finding mandatory minimums unconstitutional! Recall that in Harris, five Justices thought that Apprendi and McMillan could be reconciled but four others, in an opinion by Justice Thomas, felt that they could not be. 2 of the 5 will no longer be on the Court: Rehnquist and O'Connor. That means that if even one of the new justices disagrees with his/her predecessor on the issue, NO MORE MANDATORY MINIMUMS!

Posted by: Terry | Sep 12, 2005 4:58:50 PM

Terry, though your head-count about Harris is correct, I hope you do not think a reversal of Harris means the absolute end of mandatory minimums. All Harris is about is whether judicial factfinding to trigger MMs is allowed. For folks like Weldon Angelos, whose mandatory minimum sentence was supported by jury findings, a reversal of Harris will be inconsequential.

Posted by: Doug B. | Sep 12, 2005 5:31:42 PM

Professor Berman,

Drat--and you're correct, Utahn Weldon Angelos was *exactly* whom I had in mind. Well, let me revise my post with two thoughts:

1. Are judge-found facts a significant factor in triggering mandatory minimums? If so, would it be easier for prosecutors to simply start alleging those facts and proving them to a jury?

2. Is it possible that yet another constitutionally based assault on their sentencing system might cause Congress to completely overhaul their system? Slippery slope, perhaps, but with Booker and a reversal of Harris shooting such large holes in their sentencing scheme, perhaps Congress would seek a new, less vulnerable system. And maybe a discretionary system would look more attractive, since Blakely contained warnings about concoting elaborate sentencing schemes that obey that case's technical holdings while evading its spirit.


Posted by: Terry | Sep 12, 2005 7:16:12 PM

ou only have one. So you got a booger in your lip ring not snake bite lol unless that snake got its tooth knocked out.

Posted by: charms thomas sabo | Dec 16, 2010 2:58:32 AM

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