Alleyne v. United States/Dissent Alito

JUSTICE ALITO, dissenting.

The Court overrules a well-entrenched precedent with barely a mention of stare decisis. See ante, at 116, n.6. [p133] Stare decisis is, of course, not an "inexorable command" in the field of constitutional law. Payne v. Tennessee, 501 U.S. 808, 828 (1991). Nevertheless, the Court ought to be consistent in its willingness to reconsider precedent. If Harris v. United States, 536 U.S. 545 (2002), and McMillan v. Pennsylvania, 477 U.S. 79 (1986), can be cast aside simply because a majority of this Court now disagrees with them, that same approach may properly be followed in future cases. See Arizona v. Gant, 556 U.S. 332, 358–364 (2009) (ALITO, J., dissenting).

If the Court is of a mind to reconsider existing precedent, a prime candidate should be Apprendi v. New Jersey, 530 U.S. 466 (2000). Although Apprendi purported to rely on the original understanding of the jury trial right, there are strong reasons to question the Court's analysis on that point. See, e.g., Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L.J. 1097, 1123–1132 (2001) (critiquing the historical evidence relied upon by the Apprendi majority and concurrence, and concluding (1) that the "broad judicial discretion" characteristic of eighteenth-century common-law misdemeanor sentencing "undercuts the suggestion that sentencing was the sacred province of juries alone," (2) that even the "nineteenth-century tradition was not uniform, suggesting that the common law had no fixed rule on the subject," and (3) that "no eighteenth-century evidence link[ed] this [nineteenth-century] tradition back to the time of the Founding"); Little & Chen, The Lost History of Apprendi and the Blakely Petition for Rehearing, 17 Fed. Sentencing Rep. 69, 69–74 (2004) ("Blakely and Apprendi were undoubtedly founded on an erroneous historical understanding of the Framers' views in 1790 when they wrote the 6th Amendment's jury-trial guarantee. The fact that the Framers themselves wrote over a dozen indeterminate sentencing ranges in the first federal crime bill (see 1 Stat. 112–118 ), has simply been overlooked by the Court"); Mitchell, 's Domain, [p134] 2006 S. Ct. Rev. 297, 298–299 (2006) (arguing, in the context of defending a broader conception of the jury right, that "'s historical claim that sentencing enhancements were treated as 'elements' of offenses whenever they increased a defendant's maximum punishment is demonstrably mistaken" and that "the platitudes from Joel Prentiss Bishop's nineteenth-century treatises, which the pro-Apprendi Justices repeatedly invoke to support this assertion [that sentencing enhancements that increased a maximum punishment were treated as elements of the offense], are patently false and did not accurately describe the law in actual court decisions of that era" (footnotes omitted)).

The Court's decision creates a precedent about precedent that may have greater precedential effect than the dubious decisions on which it relies.