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April 29, 2024

A long accounting of Justice Thomas' long disaffinity for his key vote in Almendarez-Torres

In this post a couple months ago, I asked "Might Justice Thomas advocate for entirely eliminating the Apprendi's prior-conviction exception in Erlinger?".  That post discussed briefly, on the eve of a SCOTUS argument about the reach of jury trial rights, that Justice Thomas has argued since his concurrence in Apprendi that an originalist understanding of the Sixth Amendment means even "the fact of a prior conviction is an element under a recidivism statute."  But that concurrence came only a few years after Justice Thomas had been a key vote in Almendarez-Torres to allow prior conviction facts to be treated not as elements for constitutional purposes.

Law360 has this new lengthy commentary covering this ground much more thoroughly under the headline "Thomas' Long Quest To Undo A 'Grave Constitutional Error'."  This long essay merits a full read, and here is how it starts and finishes:

A quarter-century after Justice Clarence Thomas cast a pivotal vote against jury trial rights and rapidly regretted it, his relentless campaign to undo the controversial precedent is suddenly center stage with a serious shot at succeeding, as judges and lawyers increasingly deem the decision dubious and the U.S. Supreme Court chips away at its edges....

It's hard to say just how close Justice Thomas is to convincing four of his colleagues to overrule Almendarez-Torres. Justices Barrett and Gorsuch have appeared open to the idea, and Justice Gorsuch was joined by Justice Sotomayor in the Wooden concurrence, which spotlighted jury trial rights for "every fact essential to an individual's punishment."

During the Erlinger arguments, Justice Ketanji Brown Jackson asked, "If there is a history and tradition of fact-finding by the jury with respect to recidivism ... what is the basis, then, for the Almendarez-Torres carveout?"

However, Justice Samuel Alito appears unlikely to provide a helping hand, given that he has railed against the high court's 2000 decision in Apprendi, which said juries must evaluate facts that augment maximum penalties, except for the fact of a prior conviction. "Although Apprendi purported to rely on the original understanding of the jury trial right, there are strong reasons to question the court's analysis on that point," Justice Alito wrote in a solitary dissent when the high court decided Alleyne v. U.S. in 2013.

That skepticism apparently hasn't waned; at the Erlinger arguments, Justice Alito noted that "Almendarez-Torres is ... an established precedent of the court," and asked, "If we were to reexamine that, would it then be appropriate to reexamine the entire question that was opened up in Apprendi?"

So while Almendarez-Torres might be teetering, it could ultimately cheat death, as it has done for decades.  There's very little doubt, though, that as long as the precedent endures with Justice Thomas on the high court, he'll continue the campaign he commenced 24 years ago.

It's a campaign that's now familiar to followers of the Supreme Court's criminal law docket, including [Eric] Feigin, who, after finishing his opening statement at the Erlinger arguments, didn't seem very surprised by the first question from the bench.

"Wouldn't it be cleaner, though, to just simply overrule Almendarez-Torres?" Justice Thomas asked. After a brief pause, laughter filled the courtroom as Feigin replied, "I had a suspicion you might ask me that question, Justice Thomas."

April 29, 2024 at 09:10 AM | Permalink


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