Just when you thought it was safe to go back into the (cert. pool) water

Please excuse the silly Jaws 2 reference, but I am suffering a bit of the shakes after now having had a chance to read the the Supreme Court’s opinions in Shepard, all of which can now be accessed at this link.  Because the facts and law surrounding the actual holding in Shepard are complicated and opaque, few may instantly realize its block-buster status.  But Shepard is huge, because it (1) seems to limit the scope of the Almendarez-Torres “prior conviction exception” to Jones-Appendi, (2) hints that the Alemedarez-Torres “prior conviction exception” will be overruled soon, and yet (3) leaves Almendarez-Torres “prior conviction exception” alive, though now it is bloodied and perhaps gasping its final breath.

I will need future posts to explain why Justice Souter’s opinion for the Court so terriby muddies the current status of the Almendarez-Torres “prior conviction exception.”  For now, let me spotlight that the four Justices speaking for the Court in Shepard, who are keeping the Almendarez-Torres “prior conviction exception” just barely alive, were the four dissenters in the Almendarez-Torres.  The key fifth vote upholding judicial factfinding of a prior conviction and thus creating what is now the “prior conviction exception” to Jones-Appendi, back in 1998, was Justice Thomas.  Here’s what Justice Thomas says today in his Shepard concurrence about the Almendarez-Torres “prior conviction exception”: 

Almendarez-Torres … has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.  See 523 U. S., at 248–249 (SCALIA, J., joined by STEVENS, SOUTER, and GINSBURG, JJ., dissenting); Apprendi, supra, at 520–521 (THOMAS, J., concurring).  The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres’ continuing viability. Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres, despite the fundamental “imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements.”  Harris v. United States, 536 U. S. 545, 581–582 (2002) (THOMAS, J., dissenting).