Silent switches

A few persons have written to urge additional commentary (by me and the media) on Justice Ginsburg’s swing vote in Booker and the absence of a concurring opinion to defend her votes.  Of course, in this Eureka post, I did spotlight the evidence that Justice Stevens may have once had a majority for his Blakely-ization remedy and that Justice Ginsburg was the likely late-day flip-flopper.  And, in this potent LA Times commentary, Professor Alan Dershowitz had some particularly harsh words for Justice Ginsburg’s failure to explain her votes.  Nevertheless, I generally agree that further commentary and speculation about the thinking behind, and possible battle over, Justice Ginburg’s votes is justified.

But, critically, if we are going to examine silent switches, we perhaps should start with an earlier case which, at the time, seemed to spare the federal sentencing guidelines from the reach of Apprendi.  All close followers of the Apprendi line of decisions know that in Harris v. United States, 536 US 545 (2002), Justice Scalia broke ranks with the Apprendi/Blakely five in order to constitutionally approve judicial fact-finding for the enhancement of mandatory minimum sentences.  And Justice Scalia provided no explanation for his switch in Harris, even though Justice Breyer, who is never silent in these cases, said in his Harris concurrence that he could not easily distinguish Apprendi from Harris “in terms of logic.”