« Another strong piece about race and justice | Main | Can we be sure Martians are against capital punishment? »

October 10, 2007

The evolution of Justice Thomas and the wonderful nuance of sentencing law

As noted by Howard Bashman and Orin Kerr, the folks at Bloggingheads.tv have produced this amazing segment with Dahlia Lithwick and Jan Crawford Greenburg discussing Justice Clarence Thomas's new book and partisan dynamics surrounding coverage of Supreme Court.  Anyone interested in the Court/Justices or the legal media/blogging must find time to listen to the whole segment.

Among many themes developed are (1) the seemingly limited evolution of Clarence Thomas as a Justice, and (2) the constant politicization of Court coverage.  As is my tendency, my first reaction is "But everyone is failing to pay enough attention to sentencing!"  If Lithwick and Greenburg and others would all just become Blakely/Booker people, they could add so much more nuance and insight to these important issues.

First, consider Justice Thomas: he evolved (quite rapidly) concerning his understanding of the Sixth Amendment.  In 1998, he provided the fifth vote in Almendarez-Torres for what would become the "prior conviction" exception to the Apprendi rule.  But, by 2000 in Apprendi, Justice Thomas became perhaps the most ardent and vocal advocate for a broad reading of the Sixth Amendment.

Second, consider politicized debates: sentencing cases regularly defy the usual left-right tripe.  Consider, for example, the Court's work last term in Cunningham, which split the new Justices with the Chief joining the Blakely five and Justice Alito authoring a strong dissent.  Or how about James, which led to Justice Alito (for an unusual majority coalition) and Justice Scalia to trading barbs over statutory interpretation.

October 10, 2007 at 10:46 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The evolution of Justice Thomas and the wonderful nuance of sentencing law:



I trust that you mean the word "evolution" in the New York Times editorial sense to mean "a move closer to my personal opinion"?

Posted by: Orin Kerr | Oct 10, 2007 12:38:33 PM

Actually, Orin, I am a fan of the prior conviction exception. So, Justice Thomas's evolution on this particular issue is away from my personal view.

Posted by: Doug B. | Oct 10, 2007 1:37:02 PM

Ah, got it. Thanks.

Posted by: Orin Kerr | Oct 10, 2007 7:33:28 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB