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Sympathy for the Devil


Atrios’s instincts are right on all counts–Scalia is correct, and that is scary.

To provide the background, the decision today in Blakeley is an extension of the Court’s 2000 decision Apprendi v. New Jersey (also written by Scalia), in which the Court ruled that sentences given out by judges and not based on facts submitted to a jury or admitted to by the defendant violate the 6th Amendment right to a jury trial. This analysis was extended to death penalty cases in Ring v. Arizona, and while I’m praising Nino I should note that his mockery of Breyer–who wrote a ridiculous concurrence voting with the majority in Ring while still claiming that Apprendi was wrongly decided–in the latter case is a classic of judicial rhetoric. Anyway, the decision today is, I think, clearly correct, and O’Connor’s typically unpersuasive Cassandra routine in her dissent doesn’t dissuade me. Lest you think I’m getting soft, however, it should be noted that in a
less noted opinion today Scalia gutted Ring by refusing to make it apply retroactively.

In terms of the lineup–which is the more interesting question to political junkies who are casual court watchers–it’s surprising but not shocking. Scalia and Thomas, who have a libertarian streak, can occasionally stumble on to a good opinion in criminal procedure and free speech cases, while Breyer will roll like a 5 dollar whore on civil liberties cases. O’Connor, of course, is liable to end up on any side of any case…

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