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November 30, 2006

What SCOTUS should be doing

Over at SCOTUSblog, posts by Tom Goldstein and Marty Lederman highlight how light the Supreme Court docket is this Term and ask whether there "are any particular categories of cases -- defined by subject-matter, reasons-for-grant, or otherwise -- to which the Court is being insufficiently attentive."  Here's my take:

First, though I have particularly highlighted unresolved Blakely and Booker issues here and here and here, I could readily rattle off many more constitutional questions surrounding non-capital sentencing that merit the Supreme Court's attention.  My colleague Alan Michaels in a 2003 article called "Trial Rights at Sentencing" identified more than a dozen constitutional sentencing issues that have never been resolved by the Supreme Court, and I could readily supplement his list without every mentioning Blakely or Booker.

Notably, each Term, the Court always finds numerous capital sentencing issues to address, and there are actually many more lurking non-capital questions crying out for attention.  moreover, only a handful of states with active death penalty systems are ever impacted by the Court's copious capital jurisprudence.  But every jurisdiction has thousands of non-capital sentencing issues arising each year.

Second, in addition to numerous constitutional and non-constitutional federal sentencing topics needing attention, there are a host of other federal criminal law issues that deserve the Supreme Court's attention.  The federal criminal justice system used to be relatively small, but now it processes more felony cases and has more prisoners than nearly any state criminal justice system.  No entity other than the Supreme Court can resolve disputes over the scope and meaning of federal criminal statutes, and there are now plenty of these disputes.

I could go on, but I hope readers will also chime in.

UPDATE:  I should add that, after a frustrating OT '05 in which few non-capital sentencing issues were addressed, the Court has been all over this stuff in OT '06. I am inclined to speculate that Justice Alito's addition to the Court, after a career as a federal prosecutor and then over a decade toiling as a federal circuit judge, has had a valuable impact on the Court's cert choices.

November 30, 2006 at 10:24 PM | Permalink


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At How Appealing, Howard Bashman links here to several early news reports regarding today's grants; the post also includes links to lower court decisions and earlier coverage of some of the cases. Doug Berman comments on the impact that the... [Read More]

Tracked on Dec 1, 2006 4:25:54 PM


Alito was a political. I wouldn't say he has a "career."

Posted by: S.cotus | Sep 29, 2008 10:59:09 AM

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