Reflections on the Cunningham oral argument
To avoid blogging about every page, I had to go to a coffee shop to read the transcript this morning’s SCOTUS argument in Cunningham (transcript here, early analysis here). Because so much could be said about the argument and about particular lines of questions, I hope interested readers (and especially attendees) might chime in with observations in the comments. Here are a few of my first-cut reactions:
1. The actual facts of the case played no role at all during oral argument: the entire discussion was whether the California Supreme Court’s (far-fetched?) gloss on California’s statutory sentencing law was sufficient to rescue the California structured sentencing system from its apparent violation of Blakely principles.
2. The Justice all seem to be quite aware of how the Booker remedy is playing out in lower federal courts, and yet they all seem to be largely unaware of how Blakely principles have impacted state sentencing reforms. Kudos to Jeff Fisher for his work on an NACDL amicus brief (available here), which highlighted state reactions to Blakely and clearly impacted his old boss, Justice Stevens.
3. Based on their oral argument questions, I got the impression that both Chief Justice Roberts and Justice Alito are somewhat hostile to Blakely. Of course, as suggested here and here, if these two new justices are really in sync with Justices Scalia and Thomas, they would be big fans of Blakely. But I sense that pro-government sentiments may impact these new Justices more than the originalist principles that seem to drive the views of Justices Scalia and Thomas in this arena.
4. The Court seemed to be working toward a constitutional distinction between fact finding (a job for juries) and exercising policy judgments at sentencing (a job for judges). Of course, since I endorsed such a distinction as a way to understand Booker in my recent “Conceptualizing Booker” article and also in my co-authored “Making Sentencing Sensible” article, I would be pleased to see the eventual Cunningham opinion formalize such a distinction.
5. A number of Justices seemed quite concerned — perhaps too concerned? — with what might be the practical consequences of a ruling in favor of the defendant.