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June 12, 2006

The "prior conviction" sparring, Harris and Roe v. Wade

As noted in this earlier post, in addition to the death penalty rulings (basics here, commentary here), this morning's SCOTUS work included a remarkable set of dueling opinions about whether the court should reconsider the Almendarez-Torres "prior conviction" exception to the Apprendi-Blakely rule.  Justice Thomas delivered this brief passionate dissent from the denial of cert in three cases asking the court to reconsider Almendarez-Torres, while Justice Stevens issued this one paragraph statement respecting the denial of the petitions.

There is so much which might be said about the merits of this little skirmish between the two Justices, both of whom state flatly that they view Almendarez-Torres as wrongly decided.  But rather than focus on what this means for the future of the "prior conviction" exception, I must highlight two other cases that seem to be lurking in the shadow of this public spat:

1.  As Blakely followers know, the "mandatory minimum" exception from Harris v. US is perhaps even more important for sentencing jurisprudence than is the "prior conviction" exception.  As my colleague Alan Michaels has noticed, Harris makes a conspicuous appearance in Justice Stevens' statement:   

In addition to strongly suggesting that Almendarez will stand (and the absence of anyone voting with Thomas suggests it will do so), JPS expressly distinguishes the prejudice from the "wrongness" of Almendarez (unlikely) from that flowing from the wrongness of Harris.  By saying that judicial findings of prior convictions "unlike the denial of a jury trial on other issues of fact that give rise to mandatory minimum sentences, see Harris v. United States, 536 U.S. 545 (2002), will seldom create any significant risk of prejudice to the accused"), JPS indicates strongly (though I guess not surprisingly) he is willing to undo Harris.

2.  As everyone knows, the biggest stare decisis question always facing the court is the fate and future of Roe v. Wade.  I have long thought that Justice Thomas' willingness to overturn A-T was an echo of his likely approach to Roe.  And now I find it hard to read Justice Stevens' work in this area as not also reflective of the Roe elephant that is always in the stare decisis room.

June 12, 2006 at 01:11 PM | Permalink


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Tracked on Jun 13, 2006 6:05:07 PM


As long as I'm journeying down the speculative path, I'll note that Stevens' statement could also be part of an effort to woo Justice Breyer to change his vote on the Harris issue. (Breyer, in Harris, wrote that he saw no difference between minimums and maximums for Apprendi purposes, but voted against applying Apprendi in the mandatory minimum context because he was not yet ready to accept Apprendi). In this "statement," Stevens might be attempting to assure Breyer that the Apprendi majority will be "reasonable" in extending Apprendi's application, while subtly pushing the point that Apprendi is here to stay, in an effort to win Beyer over on mandatory minimums. . .

Posted by: Alan Michaels | Jun 12, 2006 2:06:27 PM

Great point, Alan, to which I would add the stare decisis dimension. Stevens says he think A-T wrong, but now is prepared to keep it (a Breyer opinion) afloat. Perhaps he now hopes/expects that Breyer will finally join Stevens et al. in Apprendi-land.

Posted by: Doug B. | Jun 12, 2006 4:06:28 PM

I too suspect Justice Steven is being tactical, not philosophical, in his vote to deny cert. Like most of the Justices, he believes that stare decisis carries less weight in a case involving Constitutional interpretation.

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