Posted by Orin Kerr:
The Blakely Revolution, Justice Scalia, and the Living Constitution:
In his part of the majority opinion in [1]United States v. Booker,
Justice Stevens had what I think is the most honest explanation of the
origins of the Blakely revolution. As sentencing guidelines schemes
became increasingly popular in the 1980s and 1990s,
the Court was faced with the issue of preserving [the] ancient
guarantee [of the Sixth Amendment] under a new set of
circumstances. The new sentencing practice forced the Court to
address the question how the right of jury trial could be
preserved, in a meaningful way guaranteeing that the jury would
still stand between the individual and the power of the government
under the new sentencing regime. And it is the new circumstances,
not a tradition or practice that the new circumstances have
superseded, that have led us to the answer first considered in
Jones and developed in Apprendi and subsequent cases culminating
with this one. It is an answer not motivated by Sixth Amendment
formalism but by the need to preserve Sixth Amendment substance.
In the view of Blakely proponents, times had changed, and the Court
needed to rethink Sixth Amendment rules "to preserve Sixth Amendment
substance" in light of new sentencing guideline regimes.
The obvious question is, how could Justice Scalia and Justice Thomas
join in this example of what might plausibly be called "living
constitutionalism"? My speculation is that there are two reasons.
First, Justices Scalia and Thomas are open to creating new
constitutional rules when they think that something new is needed to
restore the function of an old doctrine. If changing technology or
practice threaten the function of the old rule, Thomas and Scalia are
willing to create new ones. An interesting example of this is [2]Kyllo
v. United States, in which Justice Scalia's opinion, with Justice
Thomas on board, created a new Fourth Amendment rule to regulate
thermal imaging devices. Changing technology threatened to eliminate
the Fourth Amendment's traditional protection of the home, and so
Scalia created a new rule to try to restore old protections.
Second, Justices Scalia and Thomas much prefer rules to standards.
That is, they like clear legal rules knowable ex ante instead of mushy
balancing tests applied ex post. Blakely opponents never came up with
a rule to protect the Sixth Amendment jury trial guarantee, while
Blakely proponents did. Faced with a choice between a rule and a mushy
balancing test, Justices Scalia and Thomas naturally gravitated to the
new rule adopted by the Court in Blakely.
I have enabled comments.
References
1. http://www.supremecourtus.gov/opinions/04pdf/04-104.pdf
2. http://supct.law.cornell.edu/supct/pdf/99-8508P.ZO
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