Supreme Court cleanup in Aisle 4.

The law, lawyers, and the court.
July 16 2004 8:04 PM

Supreme Court Cleanup in Aisle 4

Blakely is too big and messy to ignore.

(Continued from Page 1)

"Duh ... uh ... I'm not really sure," is the best I can do right now because Justice Scalia's opinion in Blakely is both majestic and mysterious, historic and hysterical, stunning and stupefying. It is a great read but often seems more intent on teasing the dissenters than on clearly defining defendants' Sixth Amendment rights.

Lithwick says the court showed "impressive restraint" by not addressing what its holding meant for the federal sentencing guidelines. But the court's meager assertion that the Blakely case was not about the federal guidelines was the jurisprudential equivalent of tying up a rabid pit bull with a dental-floss leash. The justices in the Blakely majority had to know the decision would immediately start to chew through both state and federal sentencing systems—Justices Sandra Day O'Connor and Stephen Breyer screamed this very point in their dissents.

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Lithwick also expects the uncertainty engendered by Blakely to "launch a crucial national dialogue" about the rights at issue in Blakely. Unfortunately, lower-court judges, with many ongoing criminal trials and pending sentencing hearings, cannot put the administration of justice on hold while Ted Koppel arranges a town meeting so we can all discuss why juries are important. Moreover, the Blakely decision has not only destroyed settled sentencing doctrines, but also opened up huge new questions. Lower courts and practitioners now operate with a reasonable fear that the Blakely bull, which just ran through the china shop of sentencing law, could ultimately turn around and take another pass through the shop while everyone is trying to pick up those pieces of sentencing guideline systems already smashed to bits.

Of course, recalling the old aphorism that "Bad cases make bad law," Lithwick is right that the Supreme Court needs to carefully select which case it will use to clarify what Blakely means. But, in part because other judges do not have the luxury of taking July off, there are already dozens of lower-court rulings for the Supreme Court to consider. Looking for the right case is no longer a viable excuse for continued fiddling while Rome burns.

Miranda was decided 40 years ago, and the high court still needs to consider two or three new cases each term to help define its meaning and contours. It is surely going to take decades to sort out what exactly Blakely means, and there are going to be a lot of messy periods along the way. There is no time like the present to start the serious cleanup effort. And because no court has a mop the size of the Supreme Court, its time for the justices to trade their bathing suits for overalls and get back to work.

Douglas Berman is a law professor at the Moritz College of Law at the Ohio State University and the co-author of Sentencing Law & Policy (WoltersKluwer 3d ed., 2013).

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