Last week's cert denial in Jones: What now?

I've blogged before several times about a pending cert petition on the use of judge-found facts to increase a federal sentence. As I said in my last post:

The Supreme Court has already said that it is unconstitutional for statutes to rely on judge-found facts to justify a longer sentence; the new question is whether it is also unconstitutional for common-law rules like appellate reasonableness review to do the same thing. I first blogged about the case here.

Last week, the Supreme Court denied cert, but over the dissent of three Justices. Here is Justice Scalia (joined by Justices Thomas and Ginsburg):

Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New Jersey, and "must be found by a jury, not a judge," Cunningham v. California. We have held that a substantively unreasonable penalty is illegal and must be set aside. Gall v. United States. It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable-thereby exposing the defendant to the longer sentence-is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.

For years, however, we have refrained from saying so. In Rita v. United States, we dismissed the possibility of Sixth Amendment violations resulting from substantive reasonableness review as hypothetical and not presented by the facts of the case. …

This has gone on long enough. The present petition presents the non-hypothetical case the Court claimed to have been waiting for. …. We should grant certiorari to put an end to the unbroken string of [lower-court] cases disregarding the Sixth Amendment-or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.

In the wake of that dissent, I've seen a lot more commentary on the case than I saw while it was pending over the summer. (Here, for example, are Radley Balko, Damon Root, Tony Mauro, and Russell Berman, as well as skeptical posts from Kent Scheidegger and Bill Otis. And here's Doug Berman, who's been on the ball all along.)

But all the support probably comes too late. Unfortunately, a dissent from denial of certiorari is often a negative indicator of the likelihood that the case will be granted in the future. After all, other members of the Court probably saw the dissent before Justice Scalia published it, and if they'd found it persuasive any one of them could have decided to grant the case. So we may have just learned that only three Justices are interested in tucking back into Booker sentencing. If so, then we probably won't see the issue granted in the future.

That said, sometimes there are counter-examples. For instance, Justice Scalia dissented from the denial of a cert petition on honest services fraud in Sorich v. United States, and the Court granted cases on the same issues within a year.

Five years ago, Justice Scalia published a similar dissent to his dissent in Jones. That time, nobody joined it. This time he had three votes. Maybe five years from now, Justice Scalia will have five.

One final note: Of course, the likelihood of Supreme Court intervention skyrockets if a court of appeals agrees that judge-found facts cannot be used to increase a defendant's lawful sentencing maximum. Richard Re has an interesting post about whether lower courts should work to facilitate Supreme Court review of important questions. A lower-court decision finding an as-applied Sixth Amendment problem would certainly do so here.