Why Few Grants in Sentencing Law?:
Over at Sentencing Law & Policy, Doug Berman has a very interesting post wondering why the Supreme Court is less likely to hear cases in the area of sentencing law, especially after the 2005 blockbuster in Booker. He writes:
Here's my thinking. When a bare majority of Justices decides to introduce dramatic constitutional change that has a ripple effect through the legal system — as happened with Blakely/Booker — the conditions are ripe to get a lot of lower court confusion that the Supreme Court won't initially agree to settle. This is true for a few reasons, I think. First, 5-4 decisions are more likely than other decisions to leave open loose ends, as some compromise may be needed to secure a fifth vote. Those loose ends will lead to a lot of uncertainty below. Second, the five Justices in the majority may not have a strong sense of where to go next. If they altered the law because they wanted to change the dynamic of a particular area, they may feel they need to see how it's working out in the lower courts before they know how to proceed.
Third, with a bare majority, the Justices in the majority may want to proceed particularly cautiously, as losing one of the five may gut the original set of changes. Fourth, the four Justices on the losing end of 5-4 revolutions may be considerably less likely to vote to grant follow-up cases that further cement the decision they think is a wrong turn. If at least some of these dyanamics are accurate, you would expect 5-4 revolutions to lead to a lot of short-term confusion without a lot of grants to help settle them.
Measuring this claim empirically should be straightforward, although to do it right you'd need to go back and look through some of the the Justices' papers (such as the Blackmun papers) to see if my intuitions match up with past practice. I did do one quick check, though, which obviously is woefully incomplete but at least may be suggestive: I took a look at what the Supreme Court did after its blockbuster 1966 decision in Miranda v. Arizona. In some ways, Miranda and Blakely are similar: a 5-4 majority of the Court introduced a new set of rules that had to be followed in many criminal cases, affecting thousands of cases at a time.
It turns out that after Miranda, the Supreme Court waited for three years to decide its first Miranda case, Orozco v. Texas, 394 U.S. 324 (1969). (I'm ignoring Johnson v. New Jersey, 384 U.S. 719 (1966), which ruled that Miranda wasn't retroactive and was argued and decided in the same week as Miranda itself). I haven't gone back and read through what was happening in the lower courts after Miranda, but my vague recollection is that Miranda introduced a ton of uncertainty pretty much immediately. But the Court took its time, taking the cases over a period of many years rather than all at once.
It's hard to tell if the Miranda example is typical, but it's consistent with my sense that the Court will often take a while to work through the implications of its 5-4 revolutions. Of course, who knows what would have happened back then if there had been Yale Kamisar's Interrogation Law & Policy blog to keep everyone up on the latest developments.
I dispute the notion that there is a "paucity of cases that meet the court's standard criteria" for review. (Linda attributes this view to the Justices and Orin Kerr seems to agree.) There are numerous circuit splits on Booker issues that impact thousands of cases every month. Right after Booker, we had a crazy three-way circuit split over Booker plain error the Court refused to consider. And, as I have detailed here, even after the Court considers reasonableness review in Claiborne and Rita, there are at least three other major circuit splits on how advisory guidelines are supposed to work. . . .We're both just speculating, of course, but my own sense of what's going on is a bit different. My guess is that the Court's reluctance to resolve splits that have emerged in the last year under Booker has more to do with the nature of 5-4 constitutional revolutions than with any new reluctance to take cases or any lack of interest in sentencing law.
Significantly, while the SCOTUS docket has shrunk dramatically over the last 20 years, the size of federal and state criminal justice systems have increased dramatically. There are literally millions more criminal justice cases in the system now than there was two decades ago. In my view, the problem is not the lack of worthwhile cases, the problem is a Supreme Court which has altered its view on what sorts of cases seem worth its time and energy.
Here's my thinking. When a bare majority of Justices decides to introduce dramatic constitutional change that has a ripple effect through the legal system — as happened with Blakely/Booker — the conditions are ripe to get a lot of lower court confusion that the Supreme Court won't initially agree to settle. This is true for a few reasons, I think. First, 5-4 decisions are more likely than other decisions to leave open loose ends, as some compromise may be needed to secure a fifth vote. Those loose ends will lead to a lot of uncertainty below. Second, the five Justices in the majority may not have a strong sense of where to go next. If they altered the law because they wanted to change the dynamic of a particular area, they may feel they need to see how it's working out in the lower courts before they know how to proceed.
Third, with a bare majority, the Justices in the majority may want to proceed particularly cautiously, as losing one of the five may gut the original set of changes. Fourth, the four Justices on the losing end of 5-4 revolutions may be considerably less likely to vote to grant follow-up cases that further cement the decision they think is a wrong turn. If at least some of these dyanamics are accurate, you would expect 5-4 revolutions to lead to a lot of short-term confusion without a lot of grants to help settle them.
Measuring this claim empirically should be straightforward, although to do it right you'd need to go back and look through some of the the Justices' papers (such as the Blackmun papers) to see if my intuitions match up with past practice. I did do one quick check, though, which obviously is woefully incomplete but at least may be suggestive: I took a look at what the Supreme Court did after its blockbuster 1966 decision in Miranda v. Arizona. In some ways, Miranda and Blakely are similar: a 5-4 majority of the Court introduced a new set of rules that had to be followed in many criminal cases, affecting thousands of cases at a time.
It turns out that after Miranda, the Supreme Court waited for three years to decide its first Miranda case, Orozco v. Texas, 394 U.S. 324 (1969). (I'm ignoring Johnson v. New Jersey, 384 U.S. 719 (1966), which ruled that Miranda wasn't retroactive and was argued and decided in the same week as Miranda itself). I haven't gone back and read through what was happening in the lower courts after Miranda, but my vague recollection is that Miranda introduced a ton of uncertainty pretty much immediately. But the Court took its time, taking the cases over a period of many years rather than all at once.
It's hard to tell if the Miranda example is typical, but it's consistent with my sense that the Court will often take a while to work through the implications of its 5-4 revolutions. Of course, who knows what would have happened back then if there had been Yale Kamisar's Interrogation Law & Policy blog to keep everyone up on the latest developments.