High Court's Quiet Bombshell

Supreme court justice prison death penalty CBS

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.


The most important Supreme Court ruling Thursday -- a ruling that could affect tens of thousands of criminal sentences now and in the future -- got the least amount of media attention while the least significant ruling of the day -- in the case involving the Vice President's energy task force -- easily drew the most hot air from the chattering class.

The most substantive ruling Thursday by the justices -- one that essentially doomed to death over 100 death row inmates -- was labeled as merely "procedural" by the Court while the most procedural ruling of the day -- again, the Dick Cheney task force fight -- generated high-minded talk of the principle of separation of powers. It was a day when the Court showed both how easy and how difficult it can be to resolve the weighty issues it faces.

The most important ruling of the day came in a case, Blakely v. Washington, in which a sharply-divided Court threw out a sentence imposed upon a man who had pled guilty to kidnapping. The Court ruled that the trial judge had imposed a sentence longer than was warranted given the facts to which Ralph Howard Blakely, Jr. had admitted. This, Justice Scalia wrote for the 5-4 majority, ran afoul of the Court's recently-created rule that a defendant's criminal sentence may only be determined by facts found by juries using the reasonable doubt standard of proof.

Justice Scalia and four of his colleagues, including two of the more liberal members of the Court, threw out the sentence because they felt that the judge had too much discretion to over-sentence under Washington state's sentencing scheme. But swing-vote Justices Sandra Day O'Connor and Anthony Kennedy both wrote dissenting opinions in which they left little doubt about their fear that the sentencing schemes around the country now may be in jeopardy for a variety of reasons. I don't ever remember reading a dissent from Justice O'Connor that was as biting and as passionate as was her dissent in this case. That ought to tell us all about the extent to which this sentencing issue now roils the Court.

And it's not just with the Supreme Court. There are plenty of federal judges who feel that their sentencing guidelines don't give them enough discretion to take into account the individual defendants before them. Earlier this week, for example, U.S. District Judge William G. Young, the chief federal trial judge in Boston, declared unconstitutional the Federal Sentencing Guidelines, a ruling that surely will now make its way up the appellate ladder. Meanwhile, the American Bar Association this week, with the blessing of Justice Anthony Kennedy, chimed in with a compelling report that declared that great reforms are needed on sentencing.

Sentencing is not a glamorous topic -- like, say, an election-year fight between two branches of government over potentially damaging political documents. But it is a vitally important one. Every day in this country, in virtually every courthouse, sentencing guidelines like the one in play in Blakely are used by judges, prosecutors and defense attorneys to affect the lives of suspects, victims and their families. On Thursday, the Supreme Court tweaked the rules a bit and the ramifications of that tweaking likely will be monumental.

The second most important ruling of the day came in an Arizona case involving a death row inmate named Warren Wesley Summerlin. He was sentenced to death by a judge in a process the Supreme Court has since ruled to be unconstitutional. So what to do about his death sentence? Summerlin wanted a new sentencing hearing or a life sentence without the possibility of early release. The Supreme Court Thursday said no to him and over 100 other death row inmates waiting execution in at least four states.

In another 5-4 ruling, the Court refused to make retroactive its 2002 rule that took away from judges the right to make factual findings in capital cases. The decision means that those inmates now will not have to be re-sentenced by juries. That's good news for the states involved because it saves them an awful lot of time and money, but obviously the worst possible news for those inmates, who surely won't be comforted by the notion that the change in rule that declared their sentencing process improper was merely "procedural" in nature. Can you imagine anything more substantive than a rule that perhaps determines the fate of a man's life? I cannot.

Which brings us to the Cheney case. Yes, it's a victory for the White House and the Vice President. But it is a procedural victory. It doesn't end the case to get access to the energy task force minutes. It doesn't end the legal pressure on the Bush Administration, pressure which now will last either into a second Bush term or into a Kerry term. What it does is place the case back before the federal appeals court to begin what looks like just another round of legal haggling.

After the separation of powers issue gets resolved on the merits -- figure a year or two for that -- the White House, if it loses, then will be able to assert its executive privilege claims -- figure another year or so for that. It is possible, indeed it is likely, that Vice President Cheney will be gone from the White House by the time this case finally ends -- even if he serves two terms. So today's Cheney decision isn't a game-changer. It's a game-extender. And that's really the big difference between it and the Blakely and Summerlin decisions. Sometimes, it's the rulings that don't get all the publicity that have the most impact. This is one of those times.

By Andrew Cohen
  • John Esterbrook

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