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Oregon v. Ice:
The Supreme Court hadned down a fascinating sentencing decision in Oregon v. Ice, dividing 5-4 on whether judges can impose consecutive sentences (sentences served one after the other if the defendant is convicted of multiple crimes) based on disputed facts not found by the jury. Justice Ginsburg concluded that the answer is "yes," and she was joined by Stevens, Kennedy, Breyer, and Alito. Justice Scalia wrote a dissent arguing "no," joined by the Chief, Justice Souter, and Justice Thomas. For commentary throughout the day, check out Sentencing Law & Policy.
vassil_petrov (mail):
5-4
Functionalism (Pragmatism)v. Formalism
1.14.2009 1:24pm
Confused:
How does this comport with Apprendi?
1.14.2009 1:48pm
advisory opinion:
Loved this line from Scalia's dissent:

"That is another déjà vu and déjà rejeté; we have watched it parade past before, in several of our Apprendi-related opinions, and have not saluted."
1.14.2009 1:59pm
Some Dude:
Why isn't this a no-brainer?
1.14.2009 2:04pm
Observer:
Truly disappointed by Alito for joining the other side.
1.14.2009 2:08pm
D.A.:
Got a Supreme Court case you want to win? Hire Oregon.
1.14.2009 2:11pm
Oren:
Is it just me, or does Scalia seem actually quite insulted that Apprendi and Booker are being "distinguished"?
1.14.2009 2:19pm
NaG (mail):
I agree with Some Dude: Booker and Apprendi should have made this one easy. As it is, I don't know how anyone can reconcile these cases other than to say, "Beats me, but that's how it is."
1.14.2009 2:35pm
Guest101:
Scalia is right, and has been right for some time now, that the Court's post-Booker jurisprudence is so far from Apprendi as to be unrecognizable. They gave up on any principled analysis as soon as it became apparent what a train wreck Breyer's "remedial" opinion in Booker had created.
1.14.2009 2:42pm
Realist Liberal:
Obviously everyone knew how Scalia, Souter, Breyer and Kennedy would vote but I'm shocked at Stevens' vote. Stevens was Scalia's first ally in starting the cases that led to Apprendi. Ginsburg has alwasy been a half hearted passenger on the train to Apprendi-land (as Scalia said).
1.14.2009 2:49pm
DiverDan (mail):
These are the kinds of cases I loved in Law School. I don't practice in this area, and have only a passing acquaintance with Apprendi and Booker, but I do like to keep up with what the Supremes are up to. I read the Majority Opinion, and my initial reaction is, "they probably got it right." Then I read the Dissent, and my first reaction is "what was I thinking when I agreed with Ginsberg - I should have known better." I do understand how it got divided 5-4, and I have no strong feeling one way or the other who really got it right. If I had more time, and more interest in Crim Pro, I'd wade through the briefs &opinions below on this one.
1.14.2009 3:05pm
Cornellian (mail):
An odd reversal of the usual "tough on crime" right/left stereotype.
Can't say I'm too surprised by Alito's vote. He's probably the member
of the conservative wing that places the most emphasis on deference to
the executive and legislative branches.
1.14.2009 3:41pm
Cornellian (mail):
Got a Supreme Court case you want to win? Hire Oregon.

If only that had held true in Gonzales v. Oregon.
1.14.2009 3:41pm
John T. (mail):
An odd reversal of the usual "tough on crime" right/left stereotype.


Yes, though it is a stereotype in some cases, like with Justices Scalia and Thomas. Justice Scalia tends to be an absolutist on these things-- if it's written in the text, like right to a jury, he'll fight for that right; if it's not literally in the text, he'll ignore it.
1.14.2009 3:44pm
OrinKerr:
Justice Scalia tends to be an absolutist on these things-- if it's written in the text, like right to a jury, he'll fight for that right; if it's not literally in the text, he'll ignore it.

Justice Scalia is an absolutist at times, but sometimes he is not.
1.14.2009 3:50pm
gasman (mail):
are there any guidelines or working rules of thumb for concurrent versus consecutive sentences?
Seems like it could be a massive amount of discretion left to the judge, and the results could be vastly different than a jury intends when they convict/acquit among a laundry list of charges.
1.14.2009 4:14pm
methodact:
This seems especially useful to the police state when piling on charges, especially where the same law is written over and over again into various statutes. Maybe prosecutors can whittle down that pesky last few percent of defendents who dare risk going to trial, rather than settle for the customary assembly line plea bargain.
1.14.2009 4:35pm
Spitzer:
So the Court finally shuts down the Apprendi train. You can bet that every state responding to a future Apprendi-like challenge will cite to Ice.

Anyone else notice the dicta in RBG's opinion that upheld the importance of state sovereignty in these matters? A throwaway line, presumably designed to add weight to an otherwise lawless opinion, but doesn't this sort of say that the tenth amendment beat out the sixth/fourteenth here?
1.14.2009 6:20pm
Thoughtful (mail):
Orin Kerr quoted a poster: "Justice Scalia tends to be an absolutist on these things-- if it's written in the text, like right to a jury, he'll fight for that right; if it's not literally in the text, he'll ignore it."

and then added (as summary, suggesting a contradiction in the notion of absolutist?) "Justice Scalia is an absolutist at times, but sometimes he is not."

Orin, I'm not clear on your point here. "Fight for only and for all rights that are explicit in the Constitution" sounds like an absolute principle to me. It may not be the correct interpretative principle, and Scalia may not in fact live up to it, but it's not clear why it isn't an absolute principle. Or is that not the point of your comment?
1.14.2009 11:34pm
Oren:


Got a Supreme Court case you want to win? Hire Oregon.



If only that had held true in Gonzales v. Oregon.

Oregon won that one. Am I missing something?
1.14.2009 11:53pm
Ryan Waxx (mail):

Orin, I'm not clear on your point here. "Fight for only and for all rights that are explicit in the Constitution" sounds like an absolute principle to me. It may not be the correct interpretative principle, and Scalia may not in fact live up to it, but it's not clear why it isn't an absolute principle. Or is that not the point of your comment?


It means that he searched high and low for an exception to Scalia's tendency to be literal... and now that he found it he can safely dismiss Scalia as a hypocrite. It saves SO much time considering weather the man might be right on a subject when you have got a preferred label slapped on him.
1.15.2009 2:36pm
markm (mail):
You don't have to look any further than Raich to find an example of Scalia's hypocrisy.
1.16.2009 5:43am

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