A favorite footnote from my Rita reflections

As noted here, the Denver University Law Review allowed me to contribute my thoughts about the Supreme Court’s work in Rita v. United States in its special speedy issue on Rita.  My contribution, entitled “Rita, Reasoned Sentencing, and Resistance to Change” and available at this link, covers lots of ground and cannot be readily summarize here.  But I cannot help but flag my favorite substantive footnote from the piece, which spots a bit of a head-scracther from Justice Scalia’s Rita concurence.

Justice Scalia’s opinion in Rita seems to suggest that a within-guidelines sentence depending too much on judicially found facts would trigger “as-applied” Sixth Amendment concerns even within an advisory guideline scheme. B ut Justice Scalia’s opinion for the Court in Blakely argued for a “bright-line” approach to what types of judicial fact-finding violates the Sixth Amendment because of the “need to give intelligible content to the right of jury trial.”  Blakely v. Washington, 542 U.S. 296, 305-08 (2004).  It is ironic and surprising that Justice Scalia in Rita now seems to be advocating a vague, judicial-administered, not-yet-very-intelligible standard for applying the Sixth Amendment in the context of advisory guideline systems.