Inartful dodgers: no constitutional substance in Justice Sotomayor's cert denial statement in acquitted conduct cases

In prior posts in my "inartful dodgers" series (which are linked below), I have mostly bemoaned the cert denial statements authored or joined by four Justices that suggested they voted against cert in the McClinton case because the Sentencing Commission was now considering acquitted-conduct sentencing.  Now I want to turn to the substance of Justice Sotomayor's statement, though there really is not much actual constitutional substance to discuss.

As I have mentioned before, the Question Presented in the cert petition filed by Dayonta McClinton asked: "Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant."  Notably, though Justice Sotomayor spent five pages discussing policy concerns about acquitted-conduct sentencing — discussing, for example, "fairness" and "tension" with the jury's role and "accuracy" and "public perception" — she does not once mention either the Fifth or Sixth Amendment.  I surmise and fear this is why Justice Sotomayor's statement is only "respecting the denial of certiorari" rather than a dissent; her statement hints she only has policy concerns, and not constitutional complaints, about acquitted-conduct sentencing.  (In turn, Justice Alito's statement sensibly wonders about discussion of the Sentencing Commission and efforts by his colleagues to "lobby government entities to make preferred policy decisions.")

Because I filed amicus brief in support of cert in McClinton, I see much Fifth and Sixth Amendment substance worth discussing based on many precedents (especially those after SCOTUS somewhat blessed acquitted-conduct sentencing in US v. Watts).  Finding sentence increases based on judicial fact-finding to be constitutionally problematic, the Supreme Court in Blakely v. Washington stressed "the need to give intelligible content to the right of jury trial."  In US v. Booker, the Court emphasized that the reach and application of jury trial rights should not be driven by "Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance."  Justice Thomas, joined by Justice Scalia when concurring in Apprendi v. New Jersey, has explained why "the original meaning of the Fifth and Sixth Amendments" calls for "every fact that is by law a basis for imposing or increasing punishment (in contrast with a fact that mitigates punishment) '... [to be] proved to the jury."  And many other substantive arguments can find a grounding in constitutional text, history, tradition and precedent for limiting acquitted-conduct sentencing.

It may be unfair for me to expect much more from Justice Sotomayor's statement in conjunction with a denial of cert, especially when a busy merits docket surely was keeping her (and other Justices) plenty busy.  Still, after a year-long wait for a resolution of McClinton and a bunch of other acquitted conduct cases, I was hoping for at least some dissents from the denial of cert and some lamenting of how acquitted-conduct sentencing can "eat out the[] substance" of our people's procedural rights that the Framers placed in the Constitution. Instead, we just got a review of policy concerns and no deep discussion of constitutional substance.  Sigh. 

Inartful dodgers series:

• Inartful dodgers: some thoughts on the SCOTUS acquitted conduct cert denial
• Inartful dodgers: constitutional concerns with acquitted conduct that only SCOTUS can address
• Inartful dodgers: did the Justices write cert denial statements in the acquitted conduct cases months ago?