Historically it has been copyright law that the Supreme Court has always managed to get wrong. The reasons for that are understandable: copyright is difficult, most justices don't have a background in copyright law, and copyright cases just don't make it to the Supreme Court often. However, criminal law attorneys are usually not surprised by the decisions of the Supreme Court. That doesn't mean that everyone was happy with the decisions, but practitioners could at least forecast (from the makeup of the court) the likely outcome.
This term the court has been inconsistent, unpredictable, and imprecise to a level that have left criminal law attorneys and judges wondering what they are supposed to do. The three cases that have presented the most confusion are Crawford, Blakely, and Patane.
I have discussed Crawford v. Washington at length. The Court addressed the problem of allowing witnesses to testify without confronting the accused. This case, on its face, seemed to be a victory for the rights of accused. However, as the courts have criticized, the decision was written so broadly, and with so many holes, that it is now up to the lower courts to fill in the gaps. This case sent waves through the criminal law world. "What the hell is the Supreme Court doing to us?" was the question asked by many prosecutors and defense attorneys alike.
What the court was doing was setting the stage for a series of decisions that seemed to be nothing but confounding. Patane and Blakely were handing down around the same time. The court gave criminal law attorneys a few weeks to catch their breathes and fear the next two decisions. In Patane, the court looked at the 5th Amendment rights of a man who interrupted his Miranda warnings to say he knew his rights and then revealed his Glock. The court stressed that the 5th Amendment is a trial protection. This decision was about as suspected. While there are questions that will need to be explored by the courts it is entirely overshadowed by the decision in Blakely.
Then the largest surprise came with Blakely. As Will points out,
the Court held unconstitutional Washington state's sentencing scheme because it put too much power in the hands of judges, as opposed to juries.
It is this holding that makes the decision one of the biggest criminal law decisions in history. Where Crawford caused waves in the criminal law community this case is caused a tsunami. Many law professors and Judges have complained that the federal sentencing guidelines take away too much discretion. Now the lower courts are left with the power to raise this issue in light of the Blakely holding.
Will accurately points out that the courts did not have to read the decision broadly. Of course, the Supreme Court, in all three of these decisions, didn't have to write such imprecise decisions. The court left holes, questions, or opportunities (whichever way you wish to view it) for the lower courts to struggle with.
Will goes on to explain that in the past the lower courts have read other decisions more narrowly and reasons it could be different this time because of the makeup of the courts. He stresses the political impact of appointments to these courts are more important than people often believe. I encourage you to read his well written article for a different take on Blakely.
