The United States Supreme Court often spends as much effort qualifying its holdings as it does announcing those holdings themselves. This is especially true when the Supreme Court announces particularly significant decisions with potentially broad ramifications. Sometimes, however, the Court then finds itself in a sort of jurisprudential version of the movie "Groundhog Day," in which the same or very similar issues appear over and over again despite the Court’s best efforts to avoid them. In such circumstances, the Court often fails to abide by its earlier limitations.
Perhaps the most dramatic example in recent memory is the Apprendi line of cases. In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court found New Jersey’s hate crime statute invalid because it allowed a judge (not a jury) to increase the maximum prison sentence based on the judge’s finding by preponderance of evidence that the defendant acted with the purpose to intimidate the victim based on race. The Court reasoned that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond reasonable doubt. In so doing, it dismissed the two principal concerns urged by the dissenters: first, that its ruling would invalidate the federal sentencing guidelines; and second, that its ruling would undercut the Supreme Court’s previous decision in Walton v. Arizona, 497 U.S. 639 (1990), upholding Arizona’s (and other states’) practice of having judges, rather than juries, decide whether to impose the death penalty. In less than five years, both of the dissenters’ predictions came true.
The first of those predictions to materialize was that the Court would have to overrule Walton. In 2002, the Supreme Court handed down its decision in Ring v. Arizona, 536 U.S. 584 (2002), in which it expressly overruled Walton and held that Arizona’s death penalty scheme violated the 6th Amendment right to a jury trial in capital prosecutions. The Supreme Court softened the impact of that ruling by concluding two years later, in Schiro v. Summerlin, 124 S.Ct. 2519 (2004), that the rule announced in Ring did not apply retroactively to death penalty cases that had already become final on direct review. To accomplish that, the Court acknowledged that its rule was "new" and was not a "watershed rule of criminal procedure."
The second prediction became reality in January of this year, when the Supreme Court handed down its decision in United States v. Booker and United States v. Fanfan, 125 S.Ct. 738. In a set of fractured opinions — the opinion of "the Court" itself was written in part by Justice John Paul Stevens and in part by Justice Stephen Breyer — the Court concluded that the 6th Amendment right to a jury applied to the federal sentencing guidelines and thus required that only a jury find facts that increase a prisoner’s sentence. Accordingly, the provisions of the act that made the judicially-applied guidelines mandatory were ruled unconstitutional. The opinion came as no great surprise, given that the Supreme Court had invalidated a similar sentencing scheme used by the state of Washington barely seven months earlier, in Blakely v. Washington, 124 S.Ct. 2531 (2004). The result of that earlier decision had been chaos in the federal courts, forcing the Supreme Court to confront applicability of Apprendi’s reasoning to the federal sentencing guidelines sooner rather than later.
The application of Booker/Fanfan has given rise to a number of questions that may at some point percolate up to the Supreme Court yet again. Some also speculate that the Court may be forced to revisit its decision in another once-settled case — Almendarez-Torres v. United States, 523 U.S. 224 (1998) – and hold that the fact of a prior conviction would have to be pled and proven beyond a reasonable doubt to the jury before it could enhance a defendant’s sentence.
The Supreme Court’s progression from Apprendi to Ring and Booker/Fanfan was extremely rapid, but it is not entirely unusual for the Supreme Court to state (implicitly or explicitly) that one of its holdings is not a harbinger of change in a related area of law, only to soon reverse course and change the law in that related area as well.
In Penry v. Linaugh, 492 U.S. 302 (1989), for example, the Court held that juries in capital cases in which the defendant was mentally retarded had to be instructed that they could consider the defendant’s mental retardation as mitigating evidence in deciding whether to impose the death penalty. The Court held, however, that the cruel and unusual punishment clause of the Eighth Amendment did not categorically prohibit executing the mentally retarded.
Only 13 years later, in Atkins v. Virginia, 536 US 304 (2002), the Court held that executing the mentally retarded was indeed cruel and unusual punishment and was therefore prohibited by the 8th Amendment. The Court explained that "much ha(d) changed since" it decided Penry. The Court pointed to the fact that 16 states had enacted statutes prohibiting the execution of the mentally retarded, thereby joining the two states that had already done so at the time Penry was decided. It also pointed to the fact that only five states had executed offenders with an IQ less than 70 since Penry was decided. Based primarily on this evidence, the court held six to three that the practice of executing mentally retarded defendants "ha(d) become truly unusual, and (that) it (wa)s therefore fair to say that a national consensus ha(d) developed against it."
The Atkins Court added what appears to have been intended as a limiting footnote disclaiming that other limitations on the use of the death penalty would follow from its decision. That footnote stated: "A comparison to Stanford v. Kentucky, 492 U.S. 361 (1989), in which we held that there was no national consensus prohibiting the execution of juvenile offenders over age 15, is telling. Although we decided Stanford on the same day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty." This footnote suggested that the Court was not planning to re-evaluate the constitutionality of executing defendants who committed their crimes as juveniles in light of its decision in Atkins, but the Court nevertheless did so this term, just three years later. And in Roper v. Simmons, No. 03-633, the Court again did what it had earlier suggested it would not do, holding that the 8th Amendment forbids imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.
Such quick reversals may cause one to wonder whether the justices are being disingenuous when they make limiting disclaimers, or whether they really believe at the time they make them that their decisions will not unsettle the law in the areas in question. Our guess is that sometimes the justices really do not foresee all of the ripple effects of their opinions, and sometimes the author of the disclaimers foresees the ripple effects but wants to reassure his or her colleagues that joining a majority opinion changing one area of the law will not force them to change other areas of the law as well. Either way, given that these disclaimers often do not hold, it is tempting to speculate about how long other such disclaimers will survive. It is hard not to wonder, for example, what will come of the Court’s statement in Lawrence v. Texas, 539 U.S. 558 (2003) (the case holding that the Constitution guarantees the right of consenting adults to engage in homosexual conduct in the privacy of their own homes), that "the present case… does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." If prior history teaches us anything, it is that while the Court may be able to avoid certain questions now, the implications of its reasoning may well force it to confront those questions sooner than it might like.
ABOUT THE AUTHORS
Jeff Bleich is a litigation partner at Munger,Tolles & Olson in San Francisco. He clerked at the U.S. Supreme Court for Chief Justice Rehnquist in the 1990 term and has taught courses on federal constitutional law and habeas corpus at the University of California at Berkeley. Anne Voigts is a litigation associate at Munger, Tolles & Olson. She clerked at the U.S. Supreme Court for Justice Stevens in the 2000 term and has taught a course in criminal procedure at the University of California at Berkeley. Michelle Friedland is a litigation associate at Munger, Tolles & Olson. She clerked at the U.S. Supreme Court for Justice O’Connor in the 2001 term and has taught courses on federal jurisdiction and environmental law at Stanford Law School.
© 2005 Jeff Bleich, Anne Voigts & Michelle Friedland