Today’s Three Opinions; No School Race Cases
The opinion in TSSAA is here.
The opinion in Tellabs is here.
The opinion is Rita is here.
The next scheduled public session of the Court is Monday, June 25. The Court has nine opinions yet to release this Term — counting the school integration cases as two of the nine. It now appears likely that the Court will finish for the Term next week, perhaps sitting on at least two days for decisions.
Any chance some of the remaining cases are going to be held over for reargument in OT 07? or would they have already announced if that was going to happen?..
Comment by Phillip Edens — June 21, 2007 @ 1:53 pm
Re Rita –
From Booker, Cunningham and Rita we know that Kennedy, Breyer and Alito don’t really believe guideline sentences based on judge-found facts are unconstitutional; similarly we know that Souter, Scalia and Thomas believe that they are and see the remedy as jury-found facts. We know that Ginsberg and Stevens believe mandatory guidelines unconstitutional but do not insist upon jury-found facts.
We know that Roberts gave Ginsberg the opinion in Cunningham, which was 5-4, but gave Rita to Breyer, which was 4-2-2-1 with neither Ginsberg nor Stevens likely to join the minority (the Scalia-Thomas procedural review going nowhere). I think it is likely that the assignment to Ginsberg was one to hold the center, while the assignment to Breyer was one to continue to let him develop the law of sentencing.
If Roberts had been willing to overturn Booker on the 6th Amendment, he could have done so in Cunningham. So either he was trying to preserve a recent decision (unlike in Carhart) or he goes along with Breyer’s trio or he was voting strategically to maintain control of the opinion. If he had been willing to overturn Booker on remedy, he could have said so in Rita, and maybe even have gotten Justice Stevens to come along for a majority. So either he was trying to avoid a plurality decision or he goes along with Breyer’s trio or he was voting strategically to maintain control of the opinion.
Since I don’t think Roberts is like Burger in needing always to show that he is in control, I believe that he actually forms part of a Breyer quartet. He is clearly not originalist enough to join Scalia and Thomas (nor of course is Alito).
So why wait for Gall when there are six votes and the course to a decision is so obvious — district courts are reasonable to the extent they give reasons and not unreasonable to the extent they rely on the Guidelines. Perhaps there is a split depending on whether the reasons are used for upward or downward departures with Kennedy thinking that sentences are too long. That would really set up next term’s powder/crack case (after all, the issue’s been around for a long time, somebody must think they have 5 votes).
roger friedman
Comment by r.friedman — June 21, 2007 @ 2:22 pm