In 2000, the Supreme Court ruled in Apprendi v. New Jersey that under the 6th Amendment’s right to a jury trial, any factor that increased a defendant’s sentence had to either 1)be admitted in a plea agreement or 2)proven in front of a jury. (The case was later held to make federal sentencing guidelines advisory rather than binding.) Although it didn’t seem to generate much discussion given the holding on the same day limiting the exclusionary rule, last week the Supreme Court created a siginifcant exception to the Apprendi rule, holding that factors that could permit the application of consecutive rather than cocurrent sentences could be found by a judge alone.
Unlike in many civil lberties cases, this result had nothing to do with Bush’s apponitments. Alito voted with the majority, but the justice he replaced (O’Connor) consistently dissented from Apprendi and its progeny. Somewhat surprisingly, the new Chief Justice dissented in this case while Rehnquist surely would have been with the majority, suggesting that Roberts is slightly more moderate on civil liberties than Alito (of course, so are J. Edgar Hoover and Harry Callahan.) The case came out he way it did because Stevens and Ginsburg switched sides , with the latter writing the majority opinion.
Since I’ve made fun of Scalia’s own flexibility in applying Apprendi in the past, I feel compelled to add that his dissent in this case seems quite devastating to me. The best I can say for Ginsburg and Stevens is that where Scalia flipped in a run-of-the-mill drug and gun possession case, the set of facts in this case were at least genuinely appalling: the defendant twice (after breaking and entering) sexually assaulted an 11-year-old girl. Still, even if we assume for the sake of argument that 28 years would be more just than a lesser sentence, I don’t think that justifies winking at a maor constitutional principle. It seems to me that Apprendi requires that Oregon prove the factors that went into aggravating a sentence be adduced at plea or proven in front of a jury, and I think that principle is sound. As much as I admire both, I think in this case Stevens and Ginsburg used a tough case to make bad law.