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December 8, 2006

Additional SCOTUS docket dissection

At the Volokh Conspiracy, Orin Kerr has this intriguing post speculating about the Supreme Court's reluctance to resolve splits that have emerged after Booker.  Orin suggests the sentencing cert pattern "has more to do with the nature of 5-4 constitutional revolutions than with any new reluctance to take cases or any lack of interest in sentencing law."

I see wisdom in Orin's points, and it's surely true that "the Court will often take a while to work through the implications of its 5-4 revolutions."  That said, the modern SCOTUS sentencing story has some important additional nuances: 

Moreover, my broader point in this post was not simply to lobby for more sentencing cases on the SCOTUS docket.  Rather, I wanted simply to spotlight that, against the backdrop of massive growth in state and federal criminal justice systems and issues, reductions in the Supreme Court caseload is a deliberate choice, not an unavoidable reality.   (And, on this topic, Federal Defender Steve Sady has this extended discussion of "several areas that involve either huge numbers of cases, significant conflicts in the lower courts, or both, that need to be addressed as soon as possible.")

December 8, 2006 at 01:18 AM | Permalink


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Seems like it's not just your ordinary 5-4 split. The disserters are still writing opinions saying that they agree with a particular result but don't buy any of this Apprendi stuff (see Kennedy in Recuenco).

Posted by: Anon | Dec 8, 2006 11:04:19 AM

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