CJ Roberts and sentencing law: the virtues (and vices?) of consensus

As explained here, Jeff Rosen's extraordinary article in the Atlantic Monthly has me thinking hard about what CJ Roberts' eagerness for greater consensus could mean for sentencing law.  This post provides a brief account of what I see as possible virtues and vices of CJ Roberts' emphasis on greater SCOTUS consensus for sentencing law.

Interestingly, Sandy Levinson has this long and critical post at Balkinization in which he seems to recast CJ Roberts' avowed affinity for consensus as an interest in "suppress[ing] the expression of independent thinking, also known as concurrences or dissents."  With Levinson's focus on Hamdi, I suppose I can see a law professor's concern.  But, with an eye on modern sentencing jurisprudence and its practical impact, I consider consensus to be a critical value in too short supply.

Consider the Apprendi line of cases, which has produced a set of doctrines (and puzzling exceptions to those doctrines) that are opaque and shaky because of 5-4 votes and flip-flopping Justices (ranging from Thomas in Apprendi to Scalia in Harris to Kennedy in Ring to Ginsburg in Booker).  Especially for legislatures eager to get on with modern sentencing reforms, having a clear set of constitutional ground rules is much more important than having a perfect set of rules.  Thus, I am encouraged that, as explained here, it appears that CJ Roberts has assigned Cunningham to Justice Breyer or Justice Ginsburg.  These two Justices seem most likely to be able to produce an opinion that could carry more than five votes.  (As detailed here and here, Stephanos Bibas and I have authored this recent OSJCL article discussing consensus principles designed to help SCOTUS bring some order to its sentencing jurisprudence as it considers Cunningham.)

These same dynamics and concerns are also in play in the Court's 30+ year struggle with capital sentencing jurisprudence, though I doubt CJ Roberts can expect much success in this arena.  Notably, I believe the bulk of the 5-4 opinions already issued during the Roberts era have been in capital cases.  And the 5-4 opinions we saw last Term in Marsh and this Term Belmontes reveal how much emotion (and bad blood?) is tied up with the current Justices' views in death penalty cases.  Intriguingly, a deep commitment to consensus might have CJ Roberts urging the denial of cert in nearly all capital cases.  But, though CJ Roberts may be urging such denials, at least some Justices are obviously still very interested (as evidenced by recent grants) in capital topics that are of very little consequence in most parts of the country.

That all said, it bears spotlighting that emphasis on consensus can be a vice when it allow the Court to duck sentencing issues that merit consideration sooner rather than later.  The Court spoke in one voice in Burton to dodge the issue of Blakely retroactivity, but that just ensures more litigation and uncertainty on this consequential issue until SCOTUS resolves it definitively.  Similarly, the Court spoke in one voice in Hill when explaining whether and how lethal injection challenges could be brought via a federal 1983 action.  But, in an obvious effort to get everyone on-board, Justice Kennedy's opinion in Hill has only fueled more lower federal court debate and uncertainty about how to litigate lethal injection protocols in federal courts.

UPDATE:  A reader sent me by e-mail this interesting comment that he was having trouble adding to the comments:

I am a jailhouse lawyer (no longer incarcerated).  I think that Justice Roberts' intention is good. However, I find it hard to square with his vote in United States v. Gonzalez-Lopez. The issue in that case was a very rare one in criminal law (there has been very little case law on it in the lower courts). Justice Scalia's majority opinion was eminently sensible. And yet the Court insisted on splitting 5-4, and Roberts went with the dissent. If there ever was a "minor" issue in which consensus could have been achieved, then this case would seem to have been one. Roberts could have produced the consensus, or at least put himself on record as not being obstructionist when it clearly was not needed.

Another problem I see with this consensus stuff is demonstrated by the Court's recent decision in the last month or so where it decided that an overt act need not be cited in an indictment charging "attempt" in a criminal case. This too was an (apparently) minor issue. But the decision illustrates the other side of the coin. That is, the majority decision better at least make sense and clearly carry the day when compared to the dissent. I am almost sure that this decision cannot be read as convincing when compared to Scalia's lone dissent. I am only an "amateur" lawyer, but I do have a degree in physics, and I was also an auto mechanic for ten years. Both fields are entirely unamenable to B.S. and sloppy thinking, and the majority decision clearly falls into these categories, whereas Scalia's dissent is strikingly clear and persuasive.

Another troubling aspect of Roberts' interview is that he says Justice Marshall was a great Chief Justice (agreed), but then he says some laudatory things about Justice Rehnquist (hmm....). Okay, perhaps Rehnquist wasn't bad as a Chief Justice.  Evidently he had some good qualities in the administrative aspects of that post, and everybody on the court says he was very fair etc.  But Jesus, in the field of criminal law, one can hardly find a single decision he wrote that is notable for clarity and breaking real ground that a judge would be proud of.  Rather, one never even needed to think about his vote in advance; if the issue was even marginally debatable then, bingo, he was going to go against the defendant (with but the one exception ? the decision about Miranda he wrote in the last year or so of his life).

In comparison to Rehnquist, the real gap in the article with Roberts is his failure to mention Earl Warren. I mean, Warren's achievement in gaining total consensus in Brown v. Board of Education is staring Roberts (and any other minimally knowledgeable person) in the face.  Now, that was great consensus building in one of the handful of most important cases ever decided by the Court (and on a very "hot" issue to boot).  Of course, Rehnquist's shoddy history on that issue (it is pretty much accepted that he outright lied about it in his confirmation hearings) is also staring Roberts in the face.

I get very uneasy by a guy like Roberts who has that big smile pasted on his face, wants to make history as a consensus builder, but then has glaring gaps when he talks about stuff on point.  What the heck does he have against saying Warren was a great Chief Justice who did exactly what Roberts professes to want to do?  I mean, the answer seems to have some ugly possibilities, doesn't it?

In sum, Roberts intention is good, but let's see him put his money where his mouth is.  And too, let's see if he can even write a brilliant opinion in a tough case (as Scalia and numerous members of the Warren Court clearly can).

Nuff said....