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October 11, 2006

Reflections on the Cunningham oral argument

To avoid blogging about every page, I had to go to a coffee shop to read the transcript this morning's SCOTUS argument in Cunningham (transcript here, early analysis here).  Because so much could be said about the argument and about particular lines of questions, I hope interested readers (and especially attendees) might chime in with observations in the comments.  Here are a few of my first-cut reactions:

1.  The actual facts of the case played no role at all during oral argument: the entire discussion was whether the California Supreme Court's (far-fetched?) gloss on California's statutory sentencing law was sufficient to rescue the California structured sentencing system from its apparent violation of Blakely principles.

2.  The Justice all seem to be quite aware of how the Booker remedy is playing out in lower federal courts, and yet they all seem to be largely unaware of how Blakely principles have impacted state sentencing reforms.  Kudos to Jeff Fisher for his work on an NACDL amicus brief (available here), which highlighted state reactions to Blakely and clearly impacted his old boss, Justice Stevens.

3.  Based on their oral argument questions, I got the impression that both Chief Justice Roberts and Justice Alito are somewhat hostile to Blakely.  Of course, as suggested here and here, if these two new justices are really in sync with Justices Scalia and Thomas, they would be big fans of Blakely.  But I sense that pro-government sentiments may impact these new Justices more than the originalist principles that seem to drive the views of Justices Scalia and Thomas in this arena.

4.  The Court seemed to be working toward a constitutional distinction between fact finding (a job for juries) and exercising policy judgments at sentencing (a job for judges).  Of course, since I endorsed such a distinction as a way to understand Booker in my recent "Conceptualizing Booker" article and also in my co-authored "Making Sentencing Sensible" article, I would be pleased to see the eventual Cunningham opinion formalize such a distinction.

5.  A number of Justices seemed quite concerned — perhaps too concerned? — with what might be the practical consequences of a ruling in favor of the defendant.

October 11, 2006 at 05:25 PM | Permalink


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» Argument recap: Cunningham v. Calif. on 10/11 from SCOTUSblog
A few minutes into the Supreme Court's hearing Wednesday on a California criminal sentencing case, it already had become clear that the case is not really about a specific state sentencing law but is all about what is constitutionally "reasonable"... [Read More]

Tracked on Oct 11, 2006 5:50:54 PM

» Blog Round-Up from SCOTUSblog
At Crime & Consequences, Kent Scheidegger declares, after reading the transcript in Musladin, that "Ginsburg Gets It." At Sentencing Law and Policy, Doug Berman reflects on the oral argument in Cunningham. Doug also had an earlier post about the argume... [Read More]

Tracked on Oct 12, 2006 10:23:32 AM


FWIW, I'm not sure Scalia and Thomas are particularly driven by originalist principles in this area. I don't know about Thomas, but my sense is that Scalia sees this primarily as about rules vs. standards.

Posted by: Orin Kerr | Oct 11, 2006 5:56:52 PM

“But I sense that pro-government sentiments may impact these new Justices more than the originalist principles that seem to drive the views of Justices Scalia and Thomas in this arena.”

These are fightin’ words. Personally, I think we should give at least Roberts the benefit of the doubt, and presume that in his noggin he has a refined jurisprudence just itching to jump out. If we act like it, then hopefully it will shine through.

Of course, if he doesn’t, and he is just a government shill, then we can be rightfully angry at him, and have good cause to call him stupuid.

Posted by: S.cotus | Oct 11, 2006 6:13:02 PM

I don't think it is a matter of "pro-government sentiments" as much as it is belief in judicial restraint. One can be a solid originalist and still believe that Blakely was wrongly decided. After all, the original Sixth Amendment didn't apply to the states at all. Madison's bill did as introduced, but Congress deleted that language.

Posted by: Kent Scheidegger | Oct 11, 2006 6:34:39 PM

Kent, you're quite right. FWIW, I think the harder question is whether you can be a solid originalist and think that Blakely was correct.

Posted by: Orin Kerr | Oct 11, 2006 7:30:36 PM

I attended the arguments today. These are my thoughts (in no particular order):

1. Kennedy seems to have accepted Apprendi and Blakely as a matter of stare decisis. We got a little bit of this last term in Recuenco, but I thought his concurrence there was a little too pithy for comfort. His questioning today exhibited his skepticism that California’s system was any different than Washington’s and it was obvious that if there was no real difference, he would vote to strike it down.

2. Breyer may finally be in line, at least, to buy his ticket to Apprendi-land. But he is not going willingly. He will try to find a way to make California’s system look like the federal one. He may have his opening in the form of the various court rules that were bandied about later in the argument, but he has no support from the statute (and he knows it), and even he would say the California Supreme Court gave him no help in Black. (As an aside, depending on Breyer’s vote in this case, he will lose all right (in my mind) to scream stare decisis when Roe comes up again.)

3. Justices Roberts and Alito (especially Alito, judging from his facial expressions and body antics during the petitioner’s argument) are indeed hostile to the Apprendi line of cases. Alito apparently cannot see why judicial factfinding at sentencing is a problem; after all, he says, that is what had always been done (the worn-out O’Connor arguments). Both he and Roberts have not grasped that the upper term is not available to a California judge absent a separate factual finding (reviewed for reasonableness) – and that this is THE critical concept.

4. I was very disappointed with Roberts’s apparent elementary understanding of the nature of this whole debate. He was sarcastic with his description of the benefit that defendants would have if Cunningham were to win. (paraphrasing: “And so now, instead of not being able to impose the upper term unless there is an additional finding of fact, the ‘big benefit’ to defendants will be that a judge can give them the upper term without any additional finding.”). First, as the amicus brief pointed out with regard to seven states, indeterminate sentencing will not necessarily be the result of a Cunningham win. Jury-based, determinate systems do work. Judge Young in Boston has even shown it to be workable with the federal guidelines (see United States v. Kandirakis). Second, I was reminded of Justice Scalia’s line (in Blakely?) that it is hard to believe that a nation full of defendants and public defenders have been duped into supporting the wrong side of this debate.

5. The position of Roberts and Alito is very interesting to me given that they were both judges who sat on courts of appeal when Booker came down. Apparently like most circuit judges in the rest of the country, their concept of reasonableness review is NOT what the Apprendi majority (and even Justice Breyer, it seems) think it is. It was quite clear from the argument today that this group believes that to place ANY real restriction on judicial discretion would again create constitutional problems. This may be the most significant thing that will come of Cunningham: It is obvious to me from this argument that cases like Pho in the 1st Circuit and its equivalents elsewhere, which do not allow sentencing judges to have policy disagreement with the Guidelines, will have a short life if this Court ever takes them up.

Posted by: JDV | Oct 11, 2006 8:39:10 PM

"After all, the original Sixth Amendment didn't apply to the states at all. Madison's bill did as introduced, but Congress deleted that language."

Yes, certainly true Kent -- and then a couple generations later we fought a bloody civil war & the Union won. Funny how "originalists" often seem to glide right on by that constitutional moment. (and yes, I know the Court never went for Justice Black's full incorporation & all that, but come on, be honest: the 1860s & the 14th Amendment radically reshaped every facet of our Union and Constitution)

Posted by: 3L | Oct 11, 2006 9:07:10 PM

The Fourteenth Amendment certainly was a major change in the federal structure, but whether it "incorporated" the Bill of Rights is debatable. The contemporary Justices didn't think so. Again, one can be fully committed to an original understanding view of the Constitution and still believe that Blakely was wrongly decided, which is the essential point here.

Posted by: Kent Scheidegger | Oct 11, 2006 9:17:50 PM

Fair enough -- and I do apologize for the somewhat random snipe. I'm a frequent reader of blogs where you comment Kent, and I enjoy your contributions.

Posted by: 3L | Oct 11, 2006 9:35:44 PM

Doug, I attended the argument this morning and it lived up to your pregame billing. I think Cunningham attorney Peter Gold got the best of the argument and the Cal AG should have moved off his broken record of the "reasonableness constraint" argument, which clearly wasn't playing.

Justice Kennedy seems to have purchased a first class ticket on the Apprendiland plane. Justice Breyer seems to have settled into a coach section seat. Breyer was on board but then started to vacillate when he was confronted with a bit of confusion about whether the California Supreme Court had Bookerized the sentencing law.

It was a great oral argument, with almost all the justices engaged and asking good questions. (Justice Ginsburg seemed a little distant, but at least she wasn't unreceptive to Gold's argument, as was Roberts and Alito.)

I predict 7 to 2 for Cunningham

Bruce Cunningham (no relation)

Posted by: bruce cunningham | Oct 11, 2006 10:28:56 PM

I wouldn't say that Breyer and Kennedy have bought a ticket to "Apprendi-land," but they understand that the same five votes are still there. It is quite common for a Justice that opposed the original decision to enforce it in later cases. If you believe in stare decisis, that's what a good Justice ought to do.

Yes, Roberts and Alito are clearly hostile to Apprendi and its progeny. One needn't introduce strained interpretations of the 14th Amendment to understand why. Their positions are remarkably similar to those of the two Justices they replaced. I don't think Rehnquist or O'Connor ever gave an "originalist" explanation for opposing the Apprendi line of cases.

Stevens sounded like he is still trying to revisit the Booker remedial opinion, something I cannot imagine the Court doing.

Posted by: Marc Shepherd | Oct 12, 2006 11:38:14 AM

Marc, I am curious what gave you that impression about Justice Stevens. I don't doubt that you are correct, but I didn't pick up on that yesterday.

Posted by: JDV | Oct 12, 2006 11:53:56 AM

The Booker remedy Justice Stevens preferred was to leave the guidelines mandatory, and put all sentence-determining facts to a jury. Some people argued that that would be impractical, which was why the majority went with the advisory-guidelines remedy.

During yesterday's oral argument, Stevens was quoting a recent study that claims to demonstrate that putting these facts to a jury doesn't add undue complexity to a criminal trial. It struck me that he was trying to re-do the Booker remedy, because I can't see the relevance to Cunningham's case. If the Justices rule for Cunningham, they almost certainly won't decide the remedy themselves. They'll remand to the state court to do that.

Posted by: Marc Shepherd | Oct 12, 2006 12:19:14 PM

I see your point, and I don't doubt that Stevens would love to revisit Remedial Booker. I had interpreted his questions to be more in preparation for a rebuttal to the parade of horribles C.J. Roberts seems ready to trot out should Cunningham win. The fact that the Court cannot easily cast doubt on Remedial Booker with this case (like they could/will with, say, the way in which the courts of appeals are conducting reasonableness review) made me think that this was Stevens's motive instead.

Posted by: JDV | Oct 12, 2006 12:34:23 PM

Having skimmed the transcript, I'm not optimistic that we'll get any substantive benefit in the federal system from Cunningham. The best I can see at this point is that in rebutting the California argument that its system is like the federal system after _Booker_ the Court describes what post-_Booker_ sentencing does (should?) look like and it won't match what's happening on the ground in presumptively reasonable districts like ours.

Hopefully, I'm wrong.

Posted by: JDB | Oct 12, 2006 1:53:14 PM

Marc, my notion that Kennedy is now seated in First Class came from the first series of questions he asked the Cal AG.

After the AG said "if there's no justification offered, it will be reversed as unreasonable, not as unavailable."

Kennedy said, "That's the whole problem with your case. ...p. 41. what we are involved with in this case and with this criminal whose conviction and sentence we're reviewing here are circumstances which aggravate, and these do require findings... If those findings aren't there, it's not reasonable." p.42

Pretty strong language for someone who is simply deferring to stare decisis. Those are Scalia-type words.

I just about dropped out of my chair when I heard that exchange and moved Justice Kennedy from the maybe column on my pad to the probably for Cunningham.


Posted by: bruce cunningham | Oct 12, 2006 3:34:57 PM

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