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September 20, 2005

Will stare decisis save the A-T prior conviction exception?

As detailed in my SCOTUS head-count on Apprendi-Blakely issues, the departure of Justices Rehnquist and O'Connor from the Supreme Court means that currently there are now five Justices on record opposing the Almendarez-Torres "prior conviction exception" (Justices Stevens, Scalia, Thomas, Breyer and Ginsburg) and only two Justices supporting the Almendarez-Torres exception (Justices Kennedy and Breyer).  Though I have previously pondered whether a Justice Roberts would be in the Scalia-Thomas mold on these issues, lately I have been thinking a lot about how a Chief Justice Roberts, with his reported respect for stare decisis, might lead the Court when it (inevitably) takes a case to reconsider the Almendarez-Torres "prior conviction exception."

Larry Solum over at Legal Theory has this post which culls two choice quotes on stare decisis from Roberts' comments at his confirmation hearings.  (The quotes come from a long list in this interesting document from Senator Jon Kyl's office.)  In one quote, Roberts suggests that key considerations before reversing a prior precedent include "settled expectations, ... the legitimacy of the Court, ... whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments"; in the other quote, he emphasizes "you always have to take into account the settled expectations that have grown up around the prior precedent [because it] is a jolt to the legal system to overrule a precedent."

In my view, reversing the Almendarez-Torres "prior conviction exception" would be a significant jolt to the legal system (although we might debate whether expectations have even been truly settled in the wake of Apprendi where Justice Thomas disavowed his vote in Almendarez-Torres).   Whenever the Supreme Court has occasion to look at the prior conviction exception again, it will be especially interesting to watch how all this stare decisis talk (which, of course, is now focused on Roe) comes into play.

September 20, 2005 at 02:05 PM | Permalink


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