Black v. Blakely

The Supreme Court conferenced yesterday on the several pending California Blakely cases and a similar Tennessee case. We should see the results on Tueday, but I have no prediction. There are several possibilities for Tueday.

Cert. Grant; Argument this Term: This seems very unlikely. With the docket so full and arguments ending in just two months, I think we would have seen an order yesterday if the Court were going to grant cert and try to squeeze the case in this term.

Cert. Grant; Argument Next Term. Also seems unlikely. Why would the Court allow the uncertainty to continue for that much longer.

Cert. Denial: Always possible given how few cases the Court hears. Why would the Court deny (and my retorts)? It doesn't want to start state-by-state review of sentencing schemes (but there are similar sub-issues popping up in many states and the Court could address those all at once); it thinks the California Supreme Court was right (other than the New Mexico Supreme Court and the Cal. AG, I'm not hearing much support for this view); it wants the issues to percolate a bit in the other states before taking it up (again, why allow the uncertainty to continue for so long).

Summary Reversal: I hoping for, but not expecting this. The case is clearly enough controlled by Blakely that the criteria are met. But does the Court summarily reverse state courts very often? This is not done lightly and for that reason cannot be expected.

Note: if the Cal. cases are not on the order list on Tuesday, that means someone may be drafting either a dissent from the denial of cert. or a summary reversal opinion.