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May 16, 2006

The criminal justice test for Roberts' rules of order

With yesterday's release of more unanimous opinions from the Supreme Court, the theme of the early Roberts Court continues to be harmony.  This Bloomberg article notes that of "the 42 cases resolved so far by signed opinion, 29 came without dissent" and that some lawyers say Roberts' leadership could account for this "unusual string of unanimous rulings."  And, Orin Kerr here spotlights a comment by Marty Lederman about Roberts' early opinions, which includes this fascinating observation:

[W]hat's most striking, and most impressive, about the FAIR opinion, Ayotte, and today's Cuno opinion is that Roberts is able to bring some much needed coherence to very scattered, contradictory and contested areas of constitutional law.  He is making very deliberate choices that certain constitutional theories lurking in prior cases should prevail, and that others should be discarded, trying to bring coherence and logic to very difficult bodies of doctrine — and doing so while holding a unanimous Court, at that!

Of course, I filter all these interesting observations about the new Roberts Court through the lens of sentencing and criminal justice issues.  As I noted in this recent post about a split habeas ruling, the 5-4 votes this Term have come in criminal justice cases, and all three cases ordered to be re-argued involved criminal justice or related issues.  On the other hand, the court has been able to maintain unanimity in a few criminal rulings this term (such as in Guzek and Holmes).

Way back in September, I wondered in this post whether Roberts could bring consensus to SCOTUS sentencing jurisprudence.  Gosh knows that both capital and non-capital jurisprudence could benefit greatly from CJ Roberts bringing some more "coherence and logic" to these "very scattered, contradictory and contested areas of constitutional law."   

Though I fear split rulings are likely in hot-button capital cases like House v. Bell and Kansas v. Marsh, I am certainly rooting for CJ Roberts to bring a magic touch to death penalty jurisprudence.  And, as I have suggested in recent articles — Conceptualizing Booker and Conceptualizing Blakely — there are ways to bring greater conceptual order to the Court's recent non-capital sentencing work (although we will likely have to await next term's Cunningham case for developments on this front).  As the Term winds down, I will continue to watch if the new harmony continues or breaks down as the Court resolves the large number of criminal cases still on its docket.

May 16, 2006 at 07:47 AM | Permalink


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Professor, have you given up on Recuenco???? Isn’t there the possibility that the Supreme Court could find that the error in post-verdict proceedings is not harmless, but not structural either as there is no finding that the error affected the verdict. Could the Supreme Court define a new error affecting the sentence which is not harmless, not structural, but constitutional error requiring correction? Like constructive amendments to the indictment, there is a constructive amendment to the verdict when the judge makes extra-verdict findings. If the Supreme Court discerns there is a extra-verdict after the jury’s verdict, then there should be some extra-protections, like extra; rules of evidence, rules of criminal procedure and extra proof requirements.

Posted by: Barry Ward | May 16, 2006 9:25:25 AM

Barry, I actually have given up a bit on Recuenco after reading the oral argument. But maybe we will both be pleasantly surprised.

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