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January 23, 2007

CJ Roberts and sentencing law: his Cunningham work

Almendarez-Torres, Jones, Apprendi, Harris, Blakely, and Booker, the six major (non-capital) Sixth Amendment rulings of the Rehnquist Court, were all decided by 5-4 votes.  Cunningham, the first (of many?) major Sixth Amendment ruling of the Roberts Court was decided 6-3.  This notable reality is magnified by the fact that Chief Justice Roberts is the sixth Justice to buy his ticket to Apprendi-land.

As Linda Greenhouse and others have noted, CJ Roberts' vote is perhaps the biggest SCOTUS-watcher aspect of Cunningham, especially given his apparent hostility to Apprendi expressed at the Cunningham oral argument and Jeff Rosen's recent article in the Atlantic Monthly about CJ Roberts' eagerness for greater consensus.  Here are just a few questions kicking around my brain this morning:

1.  Did CJ Roberts' vote for defendant Cunningham at the Justices' private conference right after oral argument and then assign the opinion Justice Ginsburg OR was CJ Roberts' initially with the dissent until he saw that the majority opinion had the weight of nearly all recent precedents on its side?

2.  Might Justice Thomas — who initially resisted a broad reading of the Sixth Amendment in Almendarez-Torres but then became a true Apprendi believer — have played a large role in shaping CJ Roberts' vote?  Jan Crawford Greenburg has this WSJ op-ed suggesting Justice Thomas has been a far more influential Justice than many realize.

3.  What CJ Roberts' vote in Cunningham portend for the future of both Blakely and Booker?  Specifically:

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January 23, 2007 at 09:00 AM | Permalink


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UPDATE 4:22 PM: NPR's "Day to Day" had this segment about the Cunningham decision. Tony Mauro of Law.com [Read More]

Tracked on Jan 23, 2007 11:11:40 AM


The Jan Roberts editorial is behind the paid firewall, but as for the notion of Justice Thomas's influence, I'd be curious to know the reasoning.

Thomas, like Scalia, is not known for decisions in which he shades his opinion to attract votes. Compared to the other six holdovers from the Rehnquist Court, he was less often the opinion author in tough 5-4 cases, precisely because of his inability to hold shaky coalitions together.

Posted by: Marc Shepherd | Jan 23, 2007 10:44:08 AM

Considering the discussion about Justice Thomas and his influence on other members of the Court, I thought I would pass along that last night ABC's Nightline had a well-done story on Thomas and his personality on the Court. A text version of the story is available here: http://abcnews.go.com/Nightline/story?id=2814204&page=1

Here is one quote from the story, which overall asserts that Thomas is often the Justice bringing other Justices to his side: "Detailed notes and memos in the papers of the late Justice Harry Blackmun tell a different story [than the perception that Justice Thomas follows Scalia]. Those documents, which are housed in the Library of Congress, show that from his first days on the bench, Thomas was an independent and forceful presence. Rather than Thomas following Scalia in voting on key cases, the documentary trail shows just the opposite."

Posted by: DEJ | Jan 23, 2007 11:11:28 AM

Oh, I totally agree that Thomas is not a Scalia clone, although he is obviously far more likely to vote with Scalia than, say, Breyer. If anything, Justice Thomas is something of a maverick. Like Justice Stevens, he is somewhat more prone to filing dissents and concurrences that no one else joins. What is the evidence for the proposition that he has greater than average propensity for drawing other Justices to his side?

Posted by: Marc Shepherd | Jan 23, 2007 11:49:42 AM

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