Reviving lost causes

Scalia J's dissent (joined by Roberts CJ and Souter and Thomas JJ) in Oregon v Ice [2009] USSC 14 January 2009 raises again the question of whether judges who have previously dissented should subsequently obey the law and not repeat their dissent in a later case on the same point. This question was considered here in relation to Young v United Kingdom (blogged 19 January 2007).

Oregon v Ice concerns the determination of facts necessary to support the imposition of consecutive sentences of imprisonment. The Supreme Court has recently established, by a majority, the rule that any such fact other than a previous conviction must be admitted by the defendant or found beyond reasonable doubt by a jury: Apprendi v. New Jersey, 530 U. S. 466 (2000), applied in United States v. Booker, 543 U. S. 220, 232 (2005). However in Ice the majority held that facts, outside those necessary for the determination of guilt on a particular charge, necessary for the imposition of consecutive sentences, are for the judge to determine.

As Scalia J pointed out, this is a distinction-without-a-difference; there is

"...no room for a formalistic distinction between facts bearing on the number of years of imprisonment that a defendant will serve for one count (subject to the rule of Apprendi) and facts bearing on how many years will be served in total (now not subject to Apprendi)."

He criticises the majority for relying on "the very same" arguments that the Court had rejected in previous cases. These included the difficulties that would arise from the multiplicity of issues that may need to be considered and the number of hearings that may be required. But,

"...That is another déjà vu and déjà rejeté; we have watched it parade past before, in several of our Apprendi-related opinions, and have not saluted. See Blakely, [Blakely v. Washington, 542 U. S. 296 (2004)] at 336–337 (BREYER, J., dissenting); Apprendi, ... at 557 (same)."

I have previously (26 July 2007) noted Lord Hoffmann's upholding of the majority view in a case in which he had dissented (Cartwright v Superintendent of HM Prison [2004] UKPC 10) when the same point came to be considered in Gibson v USA (The Bahamas) [2007] UKPC 52 – even though in so upholding the majority in Cartwright in Gibson he was in the minority again. Dissenting can certainly lead to problems. No doubt Scalia J has never adhered, and never will adhere, to his own dissents.

Now that Scalia J has failed to convince the majority of the Court that arguments previously rejected should not be revived, his own contention that that is the position must – by his own reasoning – itself be rejected. Otherwise – to pick just one example seemingly at random - an originalist approach to Constitutional interpretation would have to be rejected immediately after it failed to find majority acceptance. And – another example – review of Roe v Wade would not be possible.

Just over 20 years ago, after at least 15 years of agonising by generations of law students over whether impossibility is a defence to charges of attempt or conspiracy, the House of Lords rapidly reversed itself on this point: Anderton v Ryan [1985] AC 560, R v Shivpuri [1986] 2 All ER 334. Glanville Williams had roundly criticised Anderton v Ryan in "The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes?" [1986] CLJ 33. It would be wrong to reject all possibility of rethinking weak decisions. But, subject to exceptional cases where reasoning has gone astray, or where policy can clearly be seen to have changed, judges of even the most senior courts should obey the law.