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Thursday, August 11, 2005

Roberts, the cert pool, and sentencing jurisprudence

Tony Mauro today has this great Legal Times piece which asks in its title "Will Roberts Jump Into the Supreme Court Cert Pool?"  The article provides terrific background on the SCOTUS cert pool and its potential problems given that every Justice, save for Justice Stevens, relies on the work of the pool and thus "virtually all of the cases that come to the Supreme Court are denied review and disposed of with only one or two law clerks — and no justices — actually reading the briefs." The piece has me thinking about not only the role of clerks in setting the High Court's agenda, but also whether a Justice Roberts' might change the Court's agenda even more than its jurisprudence. 

Of course, I think about these issues in the context of sentencing.  Regular readers of my Sentencing Law and Policy blog know that I have previously ranted about the Supreme Court's expenditure of so much time and energy on death penalty cases when there are so many pressing post-Blakely and post-Booker legal questions needing to be answered. (Just some of my prior rants can be found here and here and here and here and here, and I have outlined in this post just some of the post-Blakely and post-Booker questions that I think merit the Supreme Court's immediate attention.)  One hope I have for a Justice Roberts is that he might help shift the Court's sentencing agenda, although this might be a vain hope given that he lacks any real trial court or criminal law experience.

I have long speculated that the SCOTUS emphasis on capital cases is a by-product of clerk interest and the operation of the cert pool.  Especially for folks not steeped in day-to-day criminal justice realities (which I think is a fair description of most clerks), death penalty cases likely always seem more important (and certainly more exciting) than non-capital sentencing cases — after all, the issue is a matter of life or death.  Moreover, I would bet that many clerks have had their fill of non-capital sentencing cases, as a result of a year dealing with the diktats of the federal sentencing system while clerking on a circuit court, before they get to the Supreme Court.

But those who are steeped in day-to-day criminal justice realities know that many non-capital sentencing issues, and not only those that arise post-Blakely and post-Booker, are far more consequential to far more criminal cases than many of the capital sentencing issues that SCOTUS takes up each year.  And so I will close by quoting again astute and potent comments on this topic from Mike at Crime & Federalism:

What's up with the Court's granting cert. on so many death cases?  The death penalty is rarely meted out.  If the members of the Court really cared about sentencing, they'd grant cert. on the various Blakely/Booker issues.  If the "liberals" cared so much about justice in sentencing, they'd not have crafted their lame and unprincipled Booker remedial scheme. Sure, "death is different," but death is also rare.  The horrors of prison are real and frequent.

Cross-posted at Sentencing Law and Policy.

Posted by Douglas A. Berman on August 11, 2005 at 03:48 PM in Criminal Law | Permalink


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