Why Recuenco could be good news for Blakely fans

Some fans of Blakely might be bummed that the Supreme Court today in Recuenco (discussed here) declared that violations of Blakely rights could be subject to harmless error.  But I see a very important silver lining in Recuenco: the opinions and the voting pattern in Recuenco suggest to me that the main consequence (and goal?) of the opinion will be to make it much easier for the Court to feel comfortable expanding Blakely rights in the future.

By voting to limit the potential consequences of future Blakely rulings through Recuenco, three of the Blakely five — Justices Scalia and Souter and Thomas — have ensured that the entire Court can feel more at ease when deciding whether to expand Blakely rights in later cases.  Of course, the Court already has two big Blakely cases on its docket: (1) Cunningham, which addresses Blakely‘s applicability to California’s sentencing system, and (2) Burton, which addresses whether Blakely is to be applied retroactively.

The opinion in Recuenco provides no reason to believe that Justice Scalia (the author of Blakely) and Justice Souter (the author of Jones) or Justice Thomas (the author of strong separate opinions calling for Blakely‘s extension in Harris and Shepard) are not still strong believers in Blakely principles.  In fact, that these three Justices are all in the majority in Recuenco — and that Justice Thomas authored the opinion and included some loose pro-Blakely language — leads me to (naively?) view the defendant’s loss in Recuenco as setting up some more important Blakely wins next term.