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January 17, 2007

The wait for Cunningham continues

As detailed here at SCOTUSblog, the Supreme Court issued just one opinion today from a case that was argued only last month, Gonzales v. Duenas-Alvarez (05-1629).  I was hoping we might get a decision in Cunningham, the California Blakely cases, but now it appears this case is to take longer than Booker for SCOTUS to adjudicate (informed speculations here).

To justify my anticipation (and impatience), let me document reasons why I am so eager to see what the Court does in Cunningham:

1.  In the wake of Harris, the Blakely ruling was huge because it showed that five Justices were prepared to make the Apprendi doctrine truly revolutionary.  But Justice Ginsburg's flip in Booker helped a distinct group of five justices water-down the impact of Blakely through the Booker remedy.  Coming a full two years after Booker, the Cunningham case is likely to reveal whether a majority of the Court wants to continue to water-down, or now start to again liven up, the Apprendi-Blakely rule.

2.  It seems clear that Justice Kennedy still wants the Apprendi-Blakely rule watered down and that Justice Stevens likes the Apprendi-Blakely rule livened up.  But, after Recuenco and other intriguing post-Booker signals from oral arguments, it is hard to be certain about the views of any other Justices (especially now that we all have two full years' experience with the impact of the Blakely-Booker rulings).

3.  Particularly unclear is how the new Justices will get into the mix in Cunningham.  Many are assuming that the new Chief and Justice Alito are hostile to the Apprendi rule, but both Blakely and Booker revealed how conventionally thinking can be very wrong.  Especially given Justice Alito's keen understanding of criminal justice issues and CJ Roberts' avowed affinity for consensus, I think their votes (and who may be writing separate opinions) are hard to predict.

4.  Speaking of consensus, as I argued here, for the health of criminal justice systems nationwide, it is probably far more important to have a clear set of Sixth Amendment rules than to having a perfect set of rules. As detailed here and here, Stephanos Bibas and I authored this OSJCL article discussing consensus principles designed to help SCOTUS bring order to its sentencing jurisprudence.  I am hopeful, but not especially optimistic, that the Court will use Cunningham to make its shaky sentencing doctrines more stable, sensible and predictable.

I cannot quite figure out if the long wait for Cunningham is a good or bad sign.  Adding to the intrigue is the fact that, not long after the Cunningham oral argument, the Court granted cert on two Booker reasonableness cases (Claiborne and Rita).  I am now wondering if we won't see Cunningham before the SCOTUS arguments next month in Claiborne and Rita; perhaps will get all these decisions handed down together only sometime in June.

January 17, 2007 at 10:47 AM | Permalink


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I think the only thing to be inferred from the Cunningham delay is that it's probably a close case, possibly with multiple concurrences and dissents — exactly what CJ Roberts says he does not want.

Although Roberts would like to see clear consensus rulings (wouldn't we all?), it remains to be seen how successful he will be in cases where, as here, the Justices already have fairly well entrenched, diametrically opposed positions.

Posted by: Marc Shepherd | Jan 17, 2007 11:00:14 AM

I continue to believe that CJ Roberts revealed his true beliefs in the interview I cited a couple of days before. Even ignoring the interview and their Apprendi-hostile comments at oral agrument, I think it obvious that Roberts and Alito are hostile to the Apprendi line of cases. They're not originalist conservatives; they are the functional type that are very reluctant to more than minimally upset the criminal justice system, much like John Marshall Harlan II, one of Roberts' professed model judges. With Alito, case in point- I challenge anyone to find one case in which Alito, who sat on the circuit court bench for an awfully long time, dissented in urging for a defendant-friendly rule. I have no trouble finding SCOTUS cases that meet that criterion for Scalia or Thomas.

Posted by: Poirot | Jan 17, 2007 11:08:50 AM

I agree with Poirot. I think Roberts and Alito are simply result-oriented when it comes to criminal justice issues.

Posted by: anonafpd | Jan 17, 2007 11:51:27 AM

It's an insult to call Roberts and Alito "results oriented." Their approach merely shows that there is more than one type of conservatism. No one would have ever mistaken CJ Rehnquist for a liberal, but he and Scalia did come out on the opposite side of some cases, including the Apprendi line.

Posted by: Marc Shepherd | Jan 17, 2007 11:58:34 AM

Of course it's an insult to call a judge result-oriented. And I hope I'm dead wrong about Roberts and Alito. But I'm still not holding my breath waiting for anything from them in Cunningham that is defense friendly. While Prof. Berman appears cautiosly optimistic about their votes, I guess I'm "recklessly pesssimistic." I hope I'm pleasantly surprised.

Posted by: anonafpd | Jan 17, 2007 12:21:31 PM

Oh, I'm not optimistic that Roberts or Alito will join the Apprendi majority. I will be surprised if they do. I'm just saying that their failure to do so doesn't make them results oriented.

Posted by: Marc Shepherd | Jan 17, 2007 1:12:41 PM

It appears that Cunningham will be penned by either Ginsburg or Breyer. My guess is that it will be Ginsburg since she was the swing vote in Booker (and Breyer is most likely penning the only other remaining case from that sitting, a first amendment case, his favorite). Thus, I bet the cautious Booker approach, as penned by Ginsburg, will prevail.

Posted by: Fuchs | Jan 17, 2007 8:34:17 PM

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