A Historical Blog Event
An event occurred on January 12, 2005, that I consider to be incredibly significant to the future of legal education, legal scholarship, and legal practice. But that event was hidden, existing as a minor citation within a landmark US Supreme Court decision. So I think that very few people caught it.
When the consolidated case of US v. Booker and US v. Fanfan, 543 US 220 (2005), was decided, the dramatic impact was felt within criminal law in general and sentencing law in particular. This case garnered a lot of attention, even from the news media, because it declared the Federal Sentencing Guidelines unconstitutional. Booker/Fanfan applied the earlier decision of Blakely v. Washington, 542 US 296 (2004), at the Federal level. And in an amazing twist, there were two opinions to Booker/Fanfan, with completely different majorities. The first opinion held that the Guidelines were unconstitutional because they violated the Sixth Amendment (applying Blakely). But the dissenters in that first opinion became the majority for the second opinion, and held that these same Guidelines were now “advisory.”
Justice Breyer, who helped draft the Guidelines in the 1980’s (before he was a Supreme Court justice) stunned everyone by rescuing them. Justice Ginsburg, of all people, became a swing vote and joined both majorities. And Justice Scalia’s revenge against Mistretta v. US, 488 US 361, proved short-lived. (Internal citation and explanation omitted.)
Booker/Fanfan was rightly heralded for its impact on criminal punishment and sentencing. But I believe that one day it will be remembered for something else.
The fourth footnote of a dissenting opinion by J. Stevens simply states the following:
“Memorandum from Christopher A. Wray, Assistant Attorney General, U. S. Department of Justice, Criminal Division, to All Federal Prosecutors, re: Guidance Regarding the Application of Blakely v Washington, to Pending Cases, p 8, available at https://sentencing. typepad.com/sentencing_law_and_policy/
files/ chris_wray_doj_memo.pdf (hereinafter Application of Blakely); see also Brief for National Association of Federal Defenders as Amicus Curiae 9-12.”
Booker, 543 U.S. at 278 (2005).
This doesn’t sound revolutionary. The footnote is just indicating where a particular document can be found. But this is a significant historical turning point. Whether he knew it or not, J. Stevens did an amazing and unprecedented thing.
This is the first time in American history that a US Supreme Court opinion cited to a blog. It didn’t cite directly to the actual writing of the blogger. It just cited to a document that could be found there. The Supreme Court cited a blog on January 12, 2005.
In the interest of full disclosure, I should clarify that I have served as a research assistant for this blogger, Prof. Doug Berman, who runs the Sentencing Law and Policy Blog. I described some of my work for him here.
This was an important moment in American legal history, when the US Supreme Court cited, not a law review article, but a blog. And it will not be the last time. There is a growing number of court cases across the country, at the state and federal level, that cite legal blogs as dependable scholarly resources. And the Supreme Court is not likely to resist that trend, having already entered into it.