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October 1, 2009

Might Apprendi be at risk with O'Brien cert grant?

In this post concerning the Supreme Court's grant of cert this week in US v. O'Brien, I reprinted the thoughtful notion by Kevin Reitz that the Harris mandatory minimum limit on the Apprendi might be subject to reversal in O'Brien.  But one commentor in that thread suggested that maybe the spirit might be moving the other way:

[T]he question presented in O'Brienis extremely broad.  So broad, I fear, that it could conceivably accommodate the overruling of Apprendi itself -- accommodate eliminating the constitutional distinction between elements and sentencing factors.

I have yet to see anyone raise this possibility: that Roberts, Kennedy, Breyer, and Alito voted to hear O'Brienbecause they are hoping to get Sotomayor on board the plane out of Apprendi-land.

This is somewhat fanciful and paranoid speculation, to be sure. But let's not forget Citizens United. I think overruling Apprendi is no less likely an outcome than overruling Harris.

Wow, that is some wild fanciful and paranoid speculation, especially given that Chief Justice Roberts seem to have some affinity for Apprendi-land as evidenced by his votes in Cunningham and Ice.  In addition, I would be very surprised to see the Solicitor General or anyone else actively advocate overruling Apprendi anytime soon.  Moreover, Justice Stevens has said that he would like to see Harris overruled, and so I think he will likely be working harder this (last?) term to extend Apprendi and will not take kindly to any move to undo his efforts there.

That all said, all these comments usefully highlight is the unsteady and uncertain status of all aspects of the entire Apprendi-Blakely-Booker jurisprudence, and O'Brien may thus be especially important for giving us an update on all the current Justices' take on this crazy-mixed-up Sixth Amendment stuff.

October 1, 2009 at 03:19 PM | Permalink


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Professor B, I am glad you think my paranoid speculation is just crazy talk.

Let me offer one small caveat, however. The votes of CJ Roberts in Ice and Cunningham do not evince an embrace of Apprendi so much as demonstrate his purported respect for precedent. A respect for precedent which, IMHO, is demonstrated only insofar as Roberts lacks the votes to overturn precedent he disfavors. If the CJ knew he had four other justices in favor of killing Apprendi, we might see a different attitude.

In any case, I share your hope that O'Brien will produce an Apprendi-like flurry of concurrences and dissents, letting us know exactly where the justices stand.

Posted by: William O. Rights | Oct 1, 2009 3:44:42 PM

Assuming that was just crazy speculation, I am brought back to the original question: Why did the SG word the questions presented (QP) so broadly? When I read the QP in the cert petition, what immediately came to my mind was the continuing validity of Harris. Yet, when I read the argument and the Circuit opinion below, the case could be limited to a mere 924(c) statutory interpretation question.

On another note, IMO, I don't think the Supreme Court can reverse the Circuit's opinion without confronting whether Harris should be overruled. Assume that, as an alternative to the statutory interpretation argument, the Respondents argue they still win because Harris should be overruled. I can't see why the Respondents wouldn't argue that, and so I can't see how the Court could possibly reverse without addressing that argument.

And, getting back to the broadly worded QP, the Court can't avoid the issue by saying "whether Harris should be overruled is outside the scope of the question presented." If you read the QP, it certainly is very relevant to the QP, as posed by the SG.

Posted by: DEJ | Oct 1, 2009 6:33:13 PM

If Roberts' support of Apprendi in Cunningham is based on just stare decisis, why did he join in the footnote slamming Alito? "Justice Alito would do just that." (render the sixth amendment toothless)

footnote 15

Posted by: bruce cunningham | Oct 2, 2009 8:36:42 AM

I wonder about the psychology of courting Sotomayor's vote. On the one hand, if you want her on board for reversing Apprendi, you might want to get to her fast, before she gets stuck joining any opinions relying on Apprendi as stare decisis (and thus has to worry about inconsistency if she later votes to overrule Apprendi).

On the other hand, you might be worried that Sotomayor will be more skittish about rocking the stare decisis boat in her first term, and that it might be better to lie low on Apprendi, let her get her sea legs, and then recruit her next term, when she might be more self-assured about her role on the Court and more willing to overturn precedent...

Posted by: Dogstar | Oct 2, 2009 12:05:39 PM

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