A few quick reactions to James

A too-quick read of today's James opinion (basics here) prompts these first-cut reactions:

1.  Except for Justice Thomas (who pens a brief solo dissent to state again his modern opposition to the prior conviction exception), nobody seems concerned about the Sixth Amendment implications of having judges assess what might qualify as a "violent felony" under the Armed Career Criminal Act.  The majority opinion says this is a non-issue because in "determining whether attempted burglary under Florida law qualifies as a violent felony under §924(e)(2)(B)(ii), the Court is engaging in statutory interpretation, not judicial factfinding."  The main dissent does not engage this issue, suggesting only Justice Thomas disagrees.

2.  In light of point 1, just why did this little opinion in a little criminal case take so long?  My gut instinct is that there was a "fight" over Justice Souter's vote and perhaps also Justice Breyer's vote.  Justice Scalia's dissent seems awfully lengthy and detailed for a dissent, and there are passages of Justice Alito's majority opinion in James that seem written to hold on to five votes.  (See, e.g., point 3 below, discussing a classic Breyerian passage in the majority opinion.)

3.  In a passage that is notable with Claiborne and Rita pending, the James majority opinion gives the US Sentencing Commission and its guidelines much more credit than deserved.  At pages 12-13, the James majority discusses the "crime of violence" definition in the career-offender guideline which parallels the "violent felony" term under ACCA at issue in James.  In this discussion, the majority quotes a 1992 opinion from then-Judge Breyer as part of a claim that the career-offender guideline is "based on the Commission's review of empirical sentencing data and presumably reflects an assessment that attempt crimes often pose a similar risk of injury as completed offenses."  In fact, I think that the USSC's own research generally shows considerable dysfunction in the operation of the career-offender guideline.  Moreover, crack sentencing realities highlight that USSC's empirical research is not always ― indeed, is not often ― reflected in its guidelines.

4.  As I will explain more fully in a subsequent post, Justice Scalia's dissent reveals that Justice Scalia is continuing his modern tendency to channel Justice Brennan through his votes and opinions in non-capital criminal cases.

5.  What about the rule of lenity?  Justice Scalia mention the rule of lenity only once in passing in his dissent, and the majority does not engage the point.  There can be little doubt that the statute being interpreted in James is vague and debatable (indeed, Justice Scalia suggests it is unconstitutionally vague).  Isn't James exactly the type of case in which the rule of lenity ought to serve as a decisive canon of construction?