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June 21, 2007

The notable Justices not barking in Rita

Though Rita has something for everyone (and, arguably, nothing for everyone) focused on federal sentencing issues, it has very little for folks deeply interested in figuring the deeper views of particular Justices.  Specifically, I am intrigued — and somewhat disappointed as an academic — that Chief Justice Roberts and Justices Kennedy, Ginsburg and Alito are all quiet in Rita.

June 21, 2007 at 12:45 PM | Permalink


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You can't expect 9 opinions in every case!! Justice Kennedy has dissented from the Apprendi line all along, and there was nothing new for him to say. Since Kennedy had no objection to mandatory guidelines, clearly he was going accept advisory guidelines that are presumed reasonable on appeal.

Cunningham gave us a pretty good window into Justice Alito's views on sentencing. Not a perfect window, but a pretty good one.

By joining the first part of Justice Stevens's concurrence, but not the second, Justice Ginsburg made it pretty clear where she stands.

That leaves only Chief Justice Roberts as the only justice that hasn't yet put his own stamp on the debate.

Posted by: Marc Shepherd | Jun 21, 2007 1:00:50 PM

That's not true. We now know that Ginsburg hates veterans. :)

Posted by: LJ | Jun 21, 2007 1:41:56 PM

Doug, didn't Justice Ginsburg reveal a little of her thinking in joining Justice Stevens concurrence? Isn't Stevens's opinion (and Justice Scalia's, for that matter) pretty good news for Gall insofar as it endorses strong deference (a la Koon) to a district court's judgment?

Furthermore, the statement in Breyer's majority opinion that "[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court" seems to be preparing a platform to join Stevens and Ginsburg's direct endorsement of deference to the district court judge when imposing a non-guideline term, a la Koon.

These statements also seem very consistent with the form of review urged by the late Mr.Claiborne.

Posted by: zca | Jun 21, 2007 2:10:17 PM

I think it's especially interesting that Alito did not write separately, even as Scalia's spirited dissent draws on Alito's opinion in Cunningham. Perhaps Alito believes that the issue he identified in Cunningham will be resolved in Gall next term. But resolved in what way?

Posted by: Richard | Jun 21, 2007 3:00:55 PM

I actually think that Alito agrees in principle with Scalia's concurrence.

Posted by: Aaron | Jun 21, 2007 3:37:15 PM

Aaron, I think you are right. But he apparently doesn't agree with Apprendi and Blakely, otherwise he would have joined Scalia in Rita. Apparently results matter more to him than principle. (I don't understand you to disagree with this statement.)

Posted by: | Jun 21, 2007 5:19:36 PM

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