Whither (or wither) Apprendi–Blakely rights in coming constitutional sentencing fights?

One (of many?) reasons why the Supreme Court’s Sixth Amendment jurisprudence has been so quirky and unpredictable has the the fact that the Court has been, from the very beginning and even in all state cases, shadow-boxing about the validity, viability, virtues and vices of the federal sentencing guidelines.  Ever the persistent cutman, Justice Breyer has managed through the Booker remedy and his Rita opinion to keep the federal guidelines standing in round after round of the (now decade-old) modern Sixth Amendment jurisprudential bout.  (And, because of their procedural posture and facts, it seems very unlikely that Gall or Kimbrough could deliver a constitutional knock-out blow to the federal sentencing guidelines). 

But, as evidenced by rulings like Cunningham, Justice Breyer has limited ability to prevent — and perhaps limited interest in preventing — the Court’s Sixth Amendment jurisprudence from knocking down other structured sentencing reforms.  And yet, even though Cunningham majority opinion had six votes for a seemingly strong view of the Court’s Sixth Amendment work, reading all the opinions in Rita gives me the impression that only three Justices (Justices Scalia, Souter and Thomas) are deeply concerned with safeguarding, in Justice Souter’s words, “the guarantee of a robust right of jury trial.”

In the wake of Rita, I ultimately think we will need to await a district non-federal-guidelines case to know where the Court is prepared to go with its Apprendi–Blakely jurisprudence (e.g., a case dealing with the scope of the prior conviction exception or Blakely‘s applicability to supervised release revocation or to restitution awards). With the federal guidelines now likely to surviving — even though they may end up significantly bruised after Gall and Kimbrough get in their blows — perhaps Justice Breyer (and others in the Rita majority) will be prepared to spend more time in Apprendi land when the fate of the federal sentencing guidelines do not hang in the balance.