By Jonathan Adler, Washington Post, October 14
[On October 14] the Supreme Court denied certiorari in Jones v. United States. At issue was whether a criminal defendant’s Sixth Amendment rights are violated when a court imposes a sentence that, but-for a judge-found fact, would be unreasonable. Here the defendants were acquitted of a conspiracy to distribute drugs charge, but the judge nonetheless made a finding that the defendants had participated in such a conspiracy when determining their sentences for other drug offenses.
The Court’s denial of certiorari in Jones drew a dissent from three Justices — Scalia, Thomas and Ginsburg. This may seem like an odd lineup, but all three have adopted a fairly uncompromising approach to the Sixth Amendment, arguing repeatedly that the Amendment’s jury trial right requires that all elements of a crime and sentencing facts be proved to a jury beyond a reasonable doubt. Thus all three were understandably troubled by the lower court’s decision in Jones. Interestingly enough, they could not get a fourth justice to support a cert grant.