The wait for Cunningham continues
As detailed here at SCOTUSblog, the Supreme Court issued just one opinion today from a case that was argued only last month, Gonzales v. Duenas-Alvarez (05-1629). I was hoping we might get a decision in Cunningham, the California Blakely cases, but now it appears this case is to take longer than Booker for SCOTUS to adjudicate (informed speculations here).
To justify my anticipation (and impatience), let me document reasons why I am so eager to see what the Court does in Cunningham:
1. In the wake of Harris, the Blakely ruling was huge because it showed that five Justices were prepared to make the Apprendi doctrine truly revolutionary. But Justice Ginsburg’s flip in Booker helped a distinct group of five justices water-down the impact of Blakely through the Booker remedy. Coming a full two years after Booker, the Cunningham case is likely to reveal whether a majority of the Court wants to continue to water-down, or now start to again liven up, the Apprendi–Blakely rule.
2. It seems clear that Justice Kennedy still wants the Apprendi–Blakely rule watered down and that Justice Stevens likes the Apprendi–Blakely rule livened up. But, after Recuenco and other intriguing post-Booker signals from oral arguments, it is hard to be certain about the views of any other Justices (especially now that we all have two full years’ experience with the impact of the Blakely–Booker rulings).
3. Particularly unclear is how the new Justices will get into the mix in Cunningham. Many are assuming that the new Chief and Justice Alito are hostile to the Apprendi rule, but both Blakely and Booker revealed how conventionally thinking can be very wrong. Especially given Justice Alito’s keen understanding of criminal justice issues and CJ Roberts’ avowed affinity for consensus, I think their votes (and who may be writing separate opinions) are hard to predict.
4. Speaking of consensus, as I argued here, for the health of criminal justice systems nationwide, it is probably far more important to have a clear set of Sixth Amendment rules than to having a perfect set of rules. As detailed here and here, Stephanos Bibas and I authored this OSJCL article discussing consensus principles designed to help SCOTUS bring order to its sentencing jurisprudence. I am hopeful, but not especially optimistic, that the Court will use Cunningham to make its shaky sentencing doctrines more stable, sensible and predictable.
I cannot quite figure out if the long wait for Cunningham is a good or bad sign. Adding to the intrigue is the fact that, not long after the Cunningham oral argument, the Court granted cert on two Booker reasonableness cases (Claiborne and Rita). I am now wondering if we won’t see Cunningham before the SCOTUS arguments next month in Claiborne and Rita perhaps will get all these decisions handed down together only sometime in June.