Cass, have you read Blakely?

Professor Cass Sunstein, who’s always a great read, has this op-ed in today’s New York Times about the work of the Supreme Court this term. According to Professor Sunstein, “In the term just ended at the Supreme Court, minimalism emerged triumphant.” He highlights that, in Newdow and Padilla, “the court refused to reach the merits,” while in three other big cases “in which the court did reach the merits, it did so in the narrowest possible fashion.”

And where does Blakely fit in? Not a word from Professor Sunstein on this case because it does not easily fit into his theory. Professor Sunstein says “minimalists favor narrow rulings; they seek a restrained judicial role.” Well, “narrow” and “restrained” are not adjectives that describe Blakely. That said, he also asserts that minimalists have an “insistent focus on procedural safeguards,” which might be a fair characterization of Blakely. But will Scalia like being called a minimalist any more than he’ll like being called an activist?

Similarly, Linda Greenhouse’s discussion of Blakely in her traditional end-of-term wrap-up is brief and understated. And many other Supreme Court wrap-up stories, like this one from the Chicago Sun-Times and this one in Indianapolis Star, do not even mention Blakely.