A few more observations on the Cunningham opinion

There’s so much more to say about the Court’s work in Cunningham, I hardly know where to jump in.  Before heading home for the night, let me make a few more observations about the majority opinion:

1.   The Cunningham majority twice calls the Apprendi doctrine a “bright line rule” (which is how Justice Scalia described the rule in Blakely).  As I explained here a long time ago, the California lower court ruling reviewed in Cunningham was really possible because the Booker remedy obscured whatever bright line Blakely may have aspired to create.  Cunningham reveals that there are now six Justices eager to draw this constitutional bright line.

2.  Footnote 14 suggests that six Justices are not eager to have “Apprendi‘s bright line rule” include an offense/offender distinction that I have long been espousing.  Justices Kennedy and Breyer seem to have some affinity for such a distinction, but it seems that ship has sailed.  However….

3.  Still unclear now is the validity and scope of the “prior conviction exception” to “Apprendi‘s bright line rule.”  My embrace of an offense/offender distinction was in part an effort to give this exception some conceptual vitality.  One would think that a “bright line rule” ought not be obscured by exceptions, which suggests the fate of the “prior conviction exception” may still be very much up in the air (although it may now qualify as super-duper precedent).

4.  The Cunningham majority emphasizes judicial fact finding as presenting constitutional problems, which suggests that the fact/judgment distinction that I have been also espousing (with some help) might still have legs.  I suppose time (and Claiborne and Rita) will tell.