The Volokh Conspiracy

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Tradition In Erlinger

Justice Jackson thinks Apprendi was wrongly decided, Justice Gorsuch chides Justice Kavanaugh's fixation on tradition.


Erlinger v. United States presented yet another Armed Career Criminal Act (ACCA) case, but with a Fifth and Sixth Amendment angle. This dispute turned on whether the judge, rather than the jury, could determine whether three offenses were committed on separate occasions.

Justice Gorsuch wrote the majority opinion, finding that the jury had to make these findings. He was joined by Chief Justice Roberts and Justices Thomas, Sotomayor, Kagan, and Barrett. Justice Gorsuch's poetic waxing about the jury suggests that he also has the majority opinion in Jarkesy, which will embrace a broad reading of the Seventh Amendment. This prediction is worth what you paid for it.

Justice Jackson wrote a solo dissent. She argued that Apprendi was wrongly decided.

I disagree for several reasons, including my overarching view that Apprendi was wrongly decided. Like many jurists and other observers before me, I do not believe that Congress exceeds its constitutional authority when it empowers judges to make factual determinations related to punishment and directs that a particular sentencing result follow from such findings.

I did not have that one on my bingo card. Jackson would decline to extend this precedent any further. I've proposed this strategy for originalist judges–even if some precedent stands under stare decisis factors, there is no obligation to extend it to new contexts. Jackson writes:

I recognize, of course, that Apprendi is a binding precedent of this Court, and one that "has now defined the relevant legal regime" for nearly a quarter century. Alleyne v. United States, 570 U. S. 99, 122 (2013) (Breyer, J., concurring in part and concurring in judgment). Given that reality, untangling the knots Apprendi has tied is probably infeasible at this point in our Court's jurisprudential journey. But considering the flaws inherent in Apprendi's approach, I cannot join today's effort to further extend Apprendi's holding, particularly when there is a well-established recidivism exception to the Apprendi rule that applies to the circumstances of the case before us now.

As a long-time district court judge, Justice Jackson seems to have lost some faith in the ability of the jury to decide complex issues. She would restore this power to the bench. She explained:

I write separately to provide an additional critical perspective on the Apprendi doctrine—one that is informed by how sentencing has actually worked on the ground, before and after Apprendi—and to note that applying the Apprendi rule to ACCA's occasions finding creates all sorts of practical problems that are easily avoided by simply allowing judges to do what they have always done.

Justice Gorsuch seems disturbed by Jackson's lack of faith in the jury.

But the Constitution does not take such a dim view about the capacity of jurors or the rigors of trial. Surely, too, juries are no less capable than judges to decide whether three past events happened on three separate occasions. . . . 27. JUSTICE JACKSON may view juries as "roadblocks" to higher punishments. But"[t]he bottom line is this": the people ratified the Fifth and Sixth Amendments, not any of our personal views.

I spent two years clerking in the federal district court, and then one year in the circuit court. I sat through dozens of sentencing proceedings and several criminal jury trials. When I started my circuit clerkship, I implored my co-clerks to actually attend a sentencing proceeding to see what it was like. How could you meaningfully review a transcript of a sentencing hearing without ever seeing one? There was a district court across the hall. It would have taken no effort. As I recall, they never did. And I suspect most appellate law clerks, and most appellate judges, have never even seen a sentencing proceeding or a jury trial. Justice Jackson's perspective here is important, regardless of whether she is mistaken about Apprendi.

I also did not have on my bingo card that Justice Jackson would favoraby cite Jonathan Mitchell, also known in these parts as "The Genius," on Apprendi.

Justice Kavanaugh wrote the principal dissent, which was joined by Justice Alito. To perhaps no one's surprise, his analysis turns on tradition!

Given the absence of any "uniform" "tradition," the Court concluded that the choice between those methods was left to the Legislature, not governed by "a federal constitutional guarantee." Id., at 246–247. To hold "that the Constitution requires that recidivism be deemed an 'element' of petitioner's offense would mark an abrupt departure from a longstanding tradition" where a judge or a jury could determine that a defendant is a recidivist. Id., at 244. Importantly, that tradition of allowing judges to apply recidivism sentencing enhancements developed so as toavoid significant prejudice to criminal defendants.

The concept of tradition repeats throughout the opinion:

The variation in early American practice forecloses the argument that the right to have a jury apply recidivism enhancements was traditionally understood as an inherent part of the Sixth Amendment right to trial by jury.

America has a long tradition of legislative discretion over whether a judgeor jury will apply recidivism sentencing enhancements.

The distinctive tradition that governs recidivism enhancements for past offenses has traditionally co-existed with the general right to a jury trial for present offenses.

Justice Gorsuch responds that there is no such actual tradition:

All told, amicus's evidence may suggest that in a small number of jurisdictions judges could find the existence, number, and dates of a defendant's prior convictions.But none of this provides a persuasive basis for revisiting our many precedents prohibiting judges from doing more. Let alone prove "'a longstanding tradition'" in this Nation allowing a judge to find any fact regarding a defendant's "recidivis[m]." Post, at 5 (opinion of KAVANAUGH, J.).

Justice Kavanaugh also responded to Justice Thomas's concurrence to explain why Almendarez-Torres v. United States (1998) should not be overruled. I see no other reason for this lengthy analysis, other than to show that his votes in Ramos and Dobbs about stare decisis are generally applicable to new circumstances. I suspect Alito had to hold his nose on those sections about the "traditional stare decisis factors."

Ultimately, Chief Justice Roberts agrees with Justice Kavanaugh that the error in this case is likely harmless, so Mr. Erlinger may see no actual relief. Rather, he will be stuck with what Justice Kavanaugh describes as a "pointless remand."