Oregon v. Ice:
The Supreme Court hadned down a fascinating sentencing decision in Oregon v. Ice, dividing 5-4 on whether judges can impose consecutive sentences (sentences served one after the other if the defendant is convicted of multiple crimes) based on disputed facts not found by the jury. Justice Ginsburg concluded that the answer is "yes," and she was joined by Stevens, Kennedy, Breyer, and Alito. Justice Scalia wrote a dissent arguing "no," joined by the Chief, Justice Souter, and Justice Thomas. For commentary throughout the day, check out Sentencing Law & Policy.
Functionalism (Pragmatism)v. Formalism
"That is another déjà vu and déjà rejeté; we have watched it parade past before, in several of our Apprendi-related opinions, and have not saluted."
Can't say I'm too surprised by Alito's vote. He's probably the member
of the conservative wing that places the most emphasis on deference to
the executive and legislative branches.
If only that had held true in Gonzales v. Oregon.
Yes, though it is a stereotype in some cases, like with Justices Scalia and Thomas. Justice Scalia tends to be an absolutist on these things-- if it's written in the text, like right to a jury, he'll fight for that right; if it's not literally in the text, he'll ignore it.
Justice Scalia is an absolutist at times, but sometimes he is not.
Seems like it could be a massive amount of discretion left to the judge, and the results could be vastly different than a jury intends when they convict/acquit among a laundry list of charges.
Anyone else notice the dicta in RBG's opinion that upheld the importance of state sovereignty in these matters? A throwaway line, presumably designed to add weight to an otherwise lawless opinion, but doesn't this sort of say that the tenth amendment beat out the sixth/fourteenth here?
and then added (as summary, suggesting a contradiction in the notion of absolutist?) "Justice Scalia is an absolutist at times, but sometimes he is not."
Orin, I'm not clear on your point here. "Fight for only and for all rights that are explicit in the Constitution" sounds like an absolute principle to me. It may not be the correct interpretative principle, and Scalia may not in fact live up to it, but it's not clear why it isn't an absolute principle. Or is that not the point of your comment?
Oregon won that one. Am I missing something?
It means that he searched high and low for an exception to Scalia's tendency to be literal... and now that he found it he can safely dismiss Scalia as a hypocrite. It saves SO much time considering weather the man might be right on a subject when you have got a preferred label slapped on him.
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