A few quick thoughts on Recuenco

A quick read of the Supreme Court’s Blakely work in Recuenco (opinion here) provides a lot of interesting tea leaves to read.  Here are just a few quick observations, with more commentary to follow later:

1.  The court’s decision was on a 7-2 vote, with only Justices Stevens and Ginsburg dissenting.   Perhaps the most surprising (silent) member of the majority is Justice Scalia, who was the author of Blakely and a vocal dissenter in the key precedent that the majority relies upon to declare that Blakely errors can be harmless (this post details Justice Scalia’s prior assertions that jury trial errors should be seen as structural).

2.  Justice Thomas’ opinion has some broad language about “sentencing factors” that might be read — and certainly could be misconstrued — to extend the reach of Blakely.  See Recuenco, slip op. at 6 (“we have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt”); id. at 7 (discussing the Court’s “recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes”).  Both of these assertions — which carry seven votes, including those of the two new Justices — raise the stakes on what exactly counts now as a “sentencing factor.”

3.  Justice Kennedy writes an opaque little separate concurrence which seems to signal that he still does not accept Apprendi and Blakely.  Notably, Justice Breyer does not sign on to this tea leaf concurrence (nor does, for that matter, Justices Alito and CJ Roberts).

4.  The author of the main dissent on the merits is Justice Ginsburg, who writes as if she was the strongest believer in the full panoply of Blakely rights.  But, as the majority-jumping Justice in Booker who allowed for federal defendant to have their procedural rights at sentencing gutted, I am surprised she is a vocal dissenter here.  Might this dissent signal that she is disappointed with how the post-Booker world is unfolding?