Inartful dodgers: some thoughts on the SCOTUS acquitted conduct cert denial

As noted in this post from last Friday, the final work of the Supreme Court's noteworthy OT22 was a lengthy order list that included the denial of cert in a large group of cases raising the issue of acquitted conduct sentencing.  Therein, one also finds 12 pages worth of statements from a total of five Justices in the acquitted conduct case of US v. McClinton (a case in which I filed amicus brief in support of cert).  There were many curious aspects to these statements, which I will discuss in a (short) series of coming posts.  The theme of these posts will be the Supreme Court's decision to again dodge consideration of the problematic issues surrounding use of acquitted conduct in federal sentencing, and how clumsy some of the Justices' statements were.  So I'll be using the label "inartful dodgers" to describe the Court's work here.   

Before I get to the inartful aspects of the statements of the Justices, I wanted to first make mention of the four Justices who did not sign on to any statements in McClinton.  Specifically, the Chief Justice and Justices Thomas, Kagan and Jackson were silent in this setting, and I find the silence by Justices Thomas and Jackson particularly noteworthy. 

Back in the 2014 Jones case, Justice Scalia joined by Justices Ginsburg and Thomas dissented from the denial of cert on this topic.  That dissent asserted that acquitted conduct sentencing had "gone on long enough" without being squarely address by the Justices in the wake of the Court's work in Sixth Amendment cases like Apprendi, Blakely, Cunningham and Alleyne.  Given that Justice Thomas signed on to an opinion in 2014 asserting it was time for the Justices to address this issue, I find it troubling that nearly a decade later he is silent on the Court's latest decision to dodge this issue.  And that reality leads me to worry that Justice Thomas may not be a sure vote for cert on acquitted conduct anytime soon.

Justice Jackson's history as a federal public defender and as a member of the US Sentencing Commission makes me confident that she fully understands the (ugly) significance of acquitted conduct enhancements in federal sentencing.  And yet, she is silent here, neither registering any dissent to the cert denials nor joining Justice Sotomayor's statement about them.  (Notably, Justice Sotomayor's statement is not a dissent, and I will speak to that interesting reality in a future post.)  There are lots of reasons Justice Jackson might be silent, but I now cannot help but wonder if she might actually be okay with acquitted conduct sentencing enhancements.  After all, not only did Justice Jackson clerk for Justice Breyer, but she did so the year that Apprendi was decided and so she likely worked on Justice Breyer's lengthy Apprendi dissent in which he argued that "the real world of criminal justice cannot hope to meet" an idealized notion of "juries, not judges, determining the existence of those facts upon which increased punishment turns."  And so, with no dissent registered now against that history, I am inclined worry that Justice Jackson may not be a sure vote for cert on acquitted conduct anytime soon.