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October 10, 2006

What will Alito and Roberts do in Cunningham?

Talking to a great reporter today about Cunningham reminded me that Apprendi/Blakely/Booker debates are mostly virgin territory for Chief Justice Roberts and Associate Justice Alito.  Though both may have gotten a small taste of the Court's fractured Blakely universe late last term in Recuenco (discussed here and here), neither wrote in that case and the vote was not especially close.

Of course, Justice Alito had a lot of exposure to Apprendi/Blakely/Booker not only during his service on the Third Circuit, but also through his involvement (until his SCOTUS nomination) with the Constitution Project's bipartisan Sentencing Initiative group.  That group has been actively working on sound sentencing structures in light of Blakely, and in previous posts here and here I discussed Justice Alito's notable involvement and withdrawal from this endeavor.  And, of course, Justice Alito's pre-judicial experience was mostly as a federal prosecutor during the start of the federal guidelines era.  Thus, Justice Alito surely brings into Cunningham a lot well-developed instincts and beliefs about modern structured sentencing reforms.

In sharp contrast, Chief Justice Roberts seems to be mostly a blank slate in the entire criminal justice arena.  Though he wrote opinions in a few police cases last Term and had a few guideline cases during his brief tenure as a circuit judge, I doubt he has had many occasions to think broadly about modern structured sentencing reforms or particularly about the the particulars of the Court's work in the Apprendi/Blakely/Booker line of cases.  Yet, as I suggested here during his confirmation hearings, if CJ Roberts wants to build consensus in this arena, he may have to make a concerted effort to convince Justices Breyer and Kennedy to finally purchase their tickets to Apprendi-land.  But that assumes, of course, that CJ Roberts thinks, like Justices Scalia and Thomas, that Apprendi-land is where the Court should be headed.

Some related posts on the new Justices and the Apprendi/Blakely/Booker line of cases:

October 10, 2006 at 02:27 PM | Permalink


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