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July 3, 2023

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.

July 3, 2023 at 04:30 PM | Permalink


What I don't get is the idea that this problem could go away if only the Sentencing Commission gets its act together. As Justice Alito points out, that does nothing to solve the problem (if it is indeed a problem) on the state level. And I see no response at all to this point.

Posted by: Poirot | Jul 3, 2023 6:58:52 PM

You have, Poirot, previewed a point I plan to make on Independence Day!

Posted by: Doug B | Jul 3, 2023 7:37:51 PM


I was wondering what you consider some of the most embarrassingly inept SCOTUS decisions or dissents of the last 20 years or so.

KBJ’s dissent in the affirmative action case has to be in the top five, agreed?

Posted by: TarlsQtr | Jul 3, 2023 10:09:03 PM

It was probably 30 years ago that I gave up trying to read the cert denied tea leaves and just accepted that the only thing I knew it meant for sure was that existing precedent still ran the show.

Posted by: Bill Otis | Jul 3, 2023 10:54:55 PM

I have not had a time to even read all of the criminal rulings from SCOTUS this Term, let alone all the others. But feel free to set forth your SCOTUS listicles if you'd like and/or whatever you think makes a particular opinion so bad.

Posted by: Doug B | Jul 4, 2023 11:26:14 AM


Well, let’s start with KBJ’s dissent in the UNC case.

Did she bother to provide anything but a politica statement? What about the 14th Amendment and Title VI included in an argument? Nah… Do you believe dissents should include some legal arguments? Should she be able to get basic statistics right?


Posted by: TarlsQtr | Jul 5, 2023 11:00:05 PM

Mater Tarls, I have only had time to scan quickly SCOTUS opinions in a few non-criminal cases --- I am much more focused on assailing their work on acquitted conduct (where there was, depressingly, too little engagement with the Constitution).

Your comment here prompted me to look quickly at the start of KBJ's opinion in the UNC case; in her second paragraph she said "JUSTICE SOTOMAYOR has persuasively established that nothing in the Constitution or Title VI prohibits institutions from taking race into account to ensure the racial diversity of admits in higher education. I join her opinion without qualification. I write separately to expound upon the universal benefits of considering race in this context." I surmise KBJ was content with how her colleague covered legal issues and so decide to focus on other matters.

I cannot share an opinion on how she does on those fronts until I have time to read closely what she wrote (which, due to family and work commitments, I doubt I will for some time).

Posted by: Doug B | Jul 6, 2023 8:30:57 AM


“Other matters?” Meaning what? Isn’t SCOTUS a legal body?

Not to mention, she uses debunked studies, talks about minorities as if Asians and Hispanics don’t exist, and makes math errors a high school kid would catch.

Posted by: TarlsQtr | Jul 6, 2023 2:21:58 PM

Master Tarls, history and experience have long been considered quite relevant to application of many laws, and application of the tiers of scrutiny in equal protection analysis often turns on many non-doctrinal considerations. Of course, Justice OW Holmes famously said nearly 150 years ago: "The life of the law has not been logic: it has been experience."

Since I have not yet read any of the AA opinions with any care, I cannot speak to the merits or demerits of any of them. And, as I've said before, there are lots of other internet places for the discussion on non-sentencing/CJ topics. I am happy to allow others to talk off-topic in this space if that floats theirs boat, but I try to stay mostly on topics near the core of my expertise. But, like federalist, you can keep sharing you feelings on other areas of law and politics if you need another forum to vent on other subjects.

Posted by: Doug B | Jul 6, 2023 5:39:41 PM

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