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January 11, 2007

Speculating about Cunningham's composer

The latest "Supreme Court Today" newsletter by Aaron Streett of Baker Botts (available here) includes these thoughtful speculations about who's hard at work on the Cunningham case still pending before SCOTUS:

ASSIGNMENT WATCH: Two opinions remain of the 9 from the October sitting, and 2 Justices have not yet written opinions — RBG and SGB.  The 2 remaining cases are Cunningham v. California (constitutional challenge to California sentencing guidelines) and Global Crossing v. Metrophones (administrative law/private cause of action under 1996 Telecom Act).

It is exceedingly difficult to guess our mystery authors. After all, both RBG and SGB played key roles in Booker, the case on which Cunningham turns — Breyer as the author of the remedial opinion, and Ginsburg as the swing vote who joined different 5-4 majorities to first strike down the federal Guidelines, and then to salvage them by making them advisory.  As a result, either one could be writing Cunningham to uphold California's guidelines.  On the other hand, either one could be writing Global Crossing: Breyer was an administrative law professor, and Ginsburg a former D.C. Circuit judge who also has expertise in that area.

My purely speculative guess: Breyer writes upholding California's system as salvaged by the California Supreme Court, thus reprising his role in Booker.  And RBG pens Global Crossing over multiple dissents or concurrences (which would explain why the speedy RBG has been so slow in issuing her first opinion of the Term).  However, if the Chief's dog adoption from the October sitting means that he was in the minority in both Cunningham and Global Crossing, then the roles could be reversed, with RBG striking down the California guidelines (over JGR's dissent) and SGB writing Global Crossing.

A final word of caution: virtually all of this speculation rests on the assumption that Roberts and Alito will mirror their predecessors' pro-Guidelines/anti-Apprendi views, thereby maintaining four votes to uphold judicial sentencing schemes.  If either JGR or SAA turns out to be pro-Apprendi, however, then it would seem almost certain that RBG is writing Cunningham to invalidate California's guidelines.

January 11, 2007 at 09:19 AM | Permalink


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What does the Chief's dog adoption have to do with anything?

Posted by: Ronald Richards | Jan 11, 2007 10:03:27 AM

Wasn't it Chief Justice Vinson who famously said, "If you want a concurring opinion in Washington, buy a dog?"

Posted by: Matthew | Jan 11, 2007 11:16:08 AM

Since the Chief can assign himself whatever he wants when he's in the majority, the writer is guessing that he's in the minority in these cases. The reasoning is that the Chief wouldn't have preferred the railroad case as his lone October opinion.

Posted by: Marc Shepherd | Jan 11, 2007 12:05:39 PM

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