Is Apprendi still “watershed” at 25? Brief reflections on a quarter-centery of SCOTUS follow-up

The Supreme Court mostly wrapped up its docket for October Term 2024 this morning with a whole bunch of 6-3 rulings in civil cases sure to garner lots of attention.  (I say “mostly” because there is likely to be a “clean up” order list and perhaps more next week before the Justices get out their beach chairs.)  I hope to find some time in the coming days to review and assess the Court’s work in criminal/sentencing cases during OT 24, though my vague sense is that criminal defendants did relatively well across the range of cases.

In the meantime, it dawned on me recently that this week marks a full 25 years since the Supreme Court handed down its landmark sentencing procedure ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000).  Though I still think of Blakely v. Washington, 542 U.S. 296 (2004), as the case that most dramatically altered modern sentencing process, Apprendi was the case that first majestically announced the constitutional principles and core doctrinal holdings, rooted in the Fifth and Sixth Amendments, that have defined cerain procedural essentials of sentencing for now a full quarter of a century.

Though I suspect few reading this blog will dispute Apprendi‘s importance, I also suspect that those who were not actively lawyering in the early 2000s may not quite get why Justice O’Connor lamented the ruling as a misguided “watershed change in constitutional law” and why Justice Breyer feared the ruling could “threaten[] the workability of every criminal justice system.”   Part of this reality is that the immediate fall-out from Apprendi transpired in roughly the first decade after the ruling.  But, even more significantly, the Supreme Court has mostly abandoned continued Apprendi follow-up and enforcement, even though there are surely many, many sentencing practices in state and federal courts that raise serious Apprendi issues.

Indeed, after deciding seven notable Apprendi cases from 2002 to 2009 — Ring v. Arizona, 536 U.S. 584 (2002), Harris v. United States, 536 U.S. 545 (2002), Blakely v. Washington, 542 U.S. 296 (2004), United States v. Booker, 543 U.S. 220 (2005), Washington v. Recuenco, 548 U.S. 212 (2006), Cunningham v. California, 549 U.S. 270 (2007), Oregon v. Ice, 555 U.S. 160 (2009) — I can only think of five “recent” Apprendi cases over the last 16 years — Southern Union Co. v. United States, 567 U.S. 343 (2012), Alleyne v. United States, 570 U.S. 99 (2013), Hurst v. Florida, 577 U.S. 92 (2016), United States v. Haymond, 588 U.S. 634 (2019), Erlinger v. United States, 144 S. Ct. 1840 (2024).  

I am certain that there are a significant number of state sentencing practices that raise signficant Apprendi issues, but the Supreme Court has not addressed a non-capital Apprendi claim from the states since 2009.  I also know there are many federal sentencing practices, most obviously the use of acquitted conduct at sentencing, that raise signficant Apprendi issues that they Supreme Court has repeatedly dodged.  A quarter century after the Apprendi ruling, I fear this “watershed” ruling has been too often thrwarted by a SCOTUS indefference dam.  Justice Scalia often noted that the criminal jury trial guarantee was “the only one to appear in both the body of the Constitution and the Bill of Rights” and so serves as “the spinal column of American democracy.” Perhaps tellingly, since Justice Scalia’s passing, we have seen a Court more inclined toward a spinal block than to making democratic constitutional repairs.