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October 19, 2009

Are Apprendi and Blakely Justice Stevens' most favorite opinions?

This morning's USA Today includes this lovely front-page articleby Joan Biskupic about Justice Stevens. The piece, which is headlined "Supreme Court's Stevens keeps cards close to robe; Long-serving justice, 89, a force behind the scenes," is a must-read for all SCOTUS fans.  But sentencing fans might take particular note of this line reporting on what Justice Stevens' said during Biskupic's recent interview:

On opinions he finds noteworthy, he cited cases in which he crafted a narrow majority to enhance the role of juries in criminal sentencing.

Of course, the cases referenced here have to be his own 2000 Apprendi decision and the 2004 Blakely decision (which was authored by Justice Scalia, of course).  

The fact that Justice Stevens would make special mention of Apprendi and Blakely in this recent interview leads me to two questions, one backward looking and one forward looking: (1) if Justice Stevens remains proud of his work in Apprendi andBlakely, just why did he end up providing the key fifth vote to limit the reach of this jurisprudence in last Term's Ice case?, and (2) in light of his apparent affinity for Apprendi and Blakely, might Justice Stevens work extra hard this Term (which likely will be his final Term) to reverse the Harris mandatory minimum exception to Apprendi?

Some related recent posts:

October 19, 2009 at 09:58 AM | Permalink


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I wouldn't exactly call Harris an "exception" to Apprendi. The Apprendi rule simply isn't applicable.

Posted by: federalist | Oct 19, 2009 10:07:06 AM

Apprendi was the ultimate vindication for Justice Stevens' dissent in McMillan v Penn.

The Apprendi rule was foreshadowed by Stevens' statement in McMillan, "I submit that if a State provides that a specific component of a prohibited transaction shall give rise both to a special stigma and a special punishment, that component must be treated as a fact necessary to constitute the crime."


Posted by: bruce cunningham | Oct 19, 2009 10:30:49 AM

Doug. My reaction is no. I may be wrong by my opinion is that in Ice his goal was to preserve his prior decisions by making them seem more moderate and less radical. I think the key word is "enhance" in the article. There are plenty of people who would still say those cases were not merely enhancements, they were revolutions. Presenting this line of cases as more of a minor tweak makes them less controversial and more likely to be left alone after he retires. Or at least that is what I think his strategy happens to be.

Posted by: Daniel | Oct 19, 2009 11:07:57 AM

"...if Justice Stevens remains proud of his work in Apprendi and Blakely, just why did he end up providing the key fifth vote to limit the reach of this jurisprudence in last Term's Ice case?"

Being proud of something does not require that one try to extend it everywhere. Having the judge find sentencing factors encroaches on the function of the jury when those factors substitute for the elements of a higher degree of offense. The consecutive sentencing determination in Ice had no resemblance to degree of offense and no danger of encroachment on the traditional function of the jury.

Posted by: Kent Scheidegger | Oct 19, 2009 3:31:20 PM

Despite being the most avid fan of Apprendi/Blakely, as being simply a reaffirmation of the principles underlying Marbury v Madison that it doesn't matter what the legislature calls something (Mary Jane) if it quacks like an element of a crime, it is an element of a crime, I agree with Kent.

Posted by: bruce cunningham | Oct 19, 2009 9:58:06 PM

Doug, you leading with the chin again?

Posted by: federalist | Oct 19, 2009 10:00:02 PM

Can an appellate decision stand if it involved misconduct? I understand that questioning Marbury is similar to tax resistance. I have no desire to be be unrealistic. However, here is a list of its shady aspects, or Marburygate.


It first expression was, of course, catastrophic, Dred Scott, unlawfully abrogating a ratified treaty and overturning a law that prevented a Civil War, causing the Civil War.

That was bad. The lawyer hierarchy went on to killing millions of babies, based on this void for illegality appellate decision.

Posted by: Supremacy Claus | Oct 20, 2009 7:21:27 AM

I am not sure what your mean, federalist, but I assume you are commenting on my suggestion that Stevens' vote in Ice was inconsistent with his apparent affinity for Apprendi and Blakely. If that is your point, then you must also think that CJ Roberts and Justices Scalia, Souter and Thomas all have their chins out as well. Justice Scalia's opinion for those 4 properly highlighted that all the arguments made by the Ice majority would also justify going back on Apprendi and Blakely.

I do believe that a set of valid distinctions might be made between the issues in Apprendi and Blakely and the issue in Ice. But Justice Stevens did not write to explain his view, and that's why I still think his vote in Ice is peculiar in light of his apparent pride for Apprendi and Blakely. Notably, not only did Justices Justices Scalia, Souter and Thomas all think that the proper reach of Apprendi and Blakely ought to include Ice, but the new guy, CJ Roberts, also agreed. Against this voting backdrop, I stand by my suggestion that Stevens' vote in Ice is peculiar if he remains an Apprendi and Blakely true-believer.

Posted by: Doug B. | Oct 20, 2009 9:37:09 AM

So let me get this straight, Doug, just so I'm clear. You think that in order to be a "true-believer" in a decision, one must want to extend it well past where traditions say it should end? Now that's odd. One can, as I do, fiercely believe that Apprendi was correctly decided, yet feel that it simply does not apply to the consecutive/concurrent issue. Why is that "peculiar"? One could simply think that Scalia is wrong.

I think you're making a lot more over this than is warranted. It's possible to love Apprendi yet not want it to be expanded past certain boundaries. It's also possible that Stevens thought that the Ice opinion spoke for itself.

My point about "leading with your chin" is that you imply that Stevens really isn't so proud of Apprendi.

Posted by: federalist | Oct 20, 2009 12:51:33 PM

Given that all the arguments stressed in the Ice majority opinion were, as Justice Scalia notes in his effective dissent, arguments that were rejected in Apprendi and Blakely, it is hard for me to understand how a "true-believer" in THE PRINCIPLES of Apprendi and Blakely would sign on to the majority opinion in Ice. Notably, Ice was written by Justice Ginsburg, who showed she was not an Apprendi and Blakely true-believer through her Booker remedial vote with the Blakely-haters. But, before Ice, Stevens had always stuck with the Apprendi and Blakely "true-believers" of Scalia, Souter and Thomas.

Understand, I am NOT asserting that Ice was obviously wrongly or that there are not ways for Apprendi and Blakely fan to distinguish Ice (though the majority opinion in Ice did a poor job in this regard). Rather, the point of this post was to say that I find it peculiar that Stevens NOW seems to crow about his work in putting together the Apprendi/Blakely 5 "to enhance the role of juries at sentencing," when he himself got cold feet in Ice and has thereby helped undercut the real impact of Apprendi/Blakely.

As you know, federalist, juries have not in fact come to have an "enhanced role" in sentencing largely because Ginsburg lost her nerve in Booker. Had Stevens voted with other other "true-believers" in Ice, he perhaps could have helped give the Apprendi/Blakely rule at least a bit more bite. But, especially since in Booker remedy and Ice there was no longer "a narrow majority to enhance the role of juries in criminal sentencing," I still think his work in Ice and his comments in this interview are hard to reconsile.

Do you now understand the point of this post, federalist, or do I need to explain it to you one more time?

By the way, I do think you are right to question whether Harris should be called an "exception" to Apprendi, although Breyer's shaky vote in Harris perhaps suggests it should be understood this way. However, on this front, Scalia would likely agree with you that Harris should not be described as an exception to Apprendi.

Posted by: Doug B. | Oct 20, 2009 2:58:14 PM

Doug, I understand what you're saying. I just think you, as usual, overstated your case. You insinuate that Stevens isn't such a jury trial fan because what he didn't extend Apprendi, which has worked a huge change in sentencing law? That's a stretch, and I suspect you know it.

Trust me, Doug, there is very little you need to explain to me. If you had led off with a bit more explanation and a lot less Stevens-bashing, your post would have been a lot more persuasive. (By the way, I am not even necessarily disagreeing with you, just pointing out that you opened yourself up to a pretty easy riposte--see Kent S's post.) Apprendi and its progeny are a big honkin' deal. The Apprendi 5 can rightly feel pride in it. And there's a strong case to be made that the failure to extend it is no reason to believe that the pride remains genuine and the commitment to the jury trial right remains intact.

And as much as I like to bash judges, "true-believer" is a bridge too far even for me. It is an insult, and a deep one, to any judge worth his or her salt.

Posted by: federalist | Oct 20, 2009 3:25:19 PM

As usual, federalist, your like to over-react to what you think I say, rather than just focus on what I actually say. You suggest I do "a lot less Stevens-bashing," but I have a hard time seeing where I have done ANY Stevens-bashing.

The initial post, and all my follow-ups, focus on a basic question: "why did [Stevens] end up providing the key fifth vote to limit the reach of this [Apprendi] jurisprudence in last Term's Ice case?" This is not Stevens-bashing, but rather a genuine question I have had since Ice was decided.

I brought the question up again not to bash anyone, but rather to essentially remind everyone that Stevens's vote in Ice suggests he in NOT quite as big a jury trial fan as CJ Roberts and Justices Scalia, Souter and Thomas (the Ice dissenters). Justice Stevens may have good reasons for not wanting to have extended jury trial rights in Ice, but I share the dissenters' view that the reasons given by the Ice majority were not especially compelling.

Finally, for one who makes a habit of calling judges "hacks," I find it truly comical that you felt a need to defend Justice Stevens against the supposed "bash" of a label like "true-believer." Nevertheless, I suppose Justice Stevens will be pleased (and Justice Scalia perhaps disappointed) that you went to the mat for him in this thread.

You always entertain me as you puzzle and poke me, federalist. Perhaps you will someday reveal your true identity so I can know who seems to have such joy playing a blog-version of Dr. Heinz Doofenshmirtz to my Perry the Platypus (and, please know, I mean this cartoon reference to be endearing).

Posted by: Doug B. | Oct 20, 2009 6:45:25 PM

I would respectfully suggest that the phrase that Apprendi "enhanced the role of juries in criminal sentencing" comes from the author of the USA Today, not Justice Stevensor any of the 5. I believe, as Justice Scalia said in Ring, that Apprendi makes clear that juries have NO constitutional role to play in sentencing. Scalia writes, "Today's judgment has nothing to do with jury sentencing." Ring, at 612.

bruce cunningham

Posted by: bruce cunningham | Oct 20, 2009 10:46:21 PM

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